Contracts
Software License and Services Agreement for FCS and IMA
Effective August 8th 2024
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SOFTWARE LICENSE AND SERVICES AGREEMENT for FCS and IMA
ACCEPTANCE OF TERMS
By clicking “AGREE”, Customer agrees to license the Field Collection System software (“FCS Software”) and to purchase the FCS Software maintenance and support services described in the quote or pricing summary provided by Itron, Inc. or by Itron, Inc.’s distributor (the “Quote”), subject to the terms and conditions of this Agreement.
By clicking “Agree,” Customer also acknowledges that it has read and accepts the terms and conditions of this Agreement in their entirety. Customer should print a copy of this Agreement for its records.
If Customer has chosen to purchase Itron Mobile in addition to licensing FCS Software and purchasing maintenance and support for FCS, that will be reflected in the Quote, the Itron Mobile terms and conditions of this Agreement will also apply. If Customer has not chosen to purchase Itron Mobile, then the Itron Mobile terms and conditions of this Agreement do not apply.
If Customer has also chosen to purchase Itron Equipment or Third-Party Equipment (as defined in Section 4.1), that will be reflected in the Quote and the equipment purchase terms and conditions of this Agreement will apply. If Customer has not chosen to purchase Itron Equipment or Third-Party Equipment, then the equipment terms and conditions of this Agreement do not apply.
If Customer does not click “Agree,” Customer will not be provided the FCS Software, FCS Software maintenance services, Itron Mobile for FCS, or Itron Equipment or Third-Party Equipment.
TERMS & CONDITIONS SPECIFIC TO FCS, MAINTENANCE & SUPPORT, AND ITRON MOBILE
1. FCS Software
1.1 License. Subject to receipt of license fee payment by Customer or by Itron’s distributor where Customer has received a distributor Quote, Itron grants Customer a perpetual, non-exclusive and non-transferable license to use the FCS Software and FCS Software documentation for Customer’s internal business purposes in connection with the number of endpoints or other devices specified in the Quote, subject to the restrictions described below.
1.2 License Restrictions. The FCS Software may only be installed in one production environment and one test environment on Customer premises. Customer is not permitted to copy the FCS Software other than to make one machine readable copy for disaster recovery or archival purposes. Customer is not permitted to (i) modify or create any derivative works from the FCS Software, (ii) include or combine the FCS Software with any software, equipment, or hardware other than as authorized by Itron, (iii) use the FCS Software to provide services to third-parties, (iv) reverse assemble, decompile, reverse engineer the FCS Software or otherwise attempt to derive its source code, (v) export the FCS Software, or (iv) use the FCS Software to create products or services that compete with any of Itron’s products or services. Customer’s breach of these restrictions shall constitute a material breach of this Agreement and shall result in revocation and immediate termination of all rights and licenses granted under this Agreement. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
1.3 Limited Itron FCS Software Warranty. For a period of ninety (90) days from the date of shipment, Itron warrants to Customer that the FCS Software will substantially conform in all material respects with Itron published specifications. As Customer’s sole and exclusive remedy for any breach of this warranty, Itron will during the warranty period set forth in this Section, either repair or replace non-conforming FCS Software to substantially conform to Itron published specifications. After the ninety (90) day period, any Itron FCS Software non-conformities will be addressed under maintenance services terms. This software warranty does not apply to non-conformities due to: (i) modifications not made or approved by Itron in writing; (ii) Customer’s or any third-party’s negligence or intentional acts; (iii) misuse or abuse, including the failure to use or install FCS Software in accordance with the FCS Software documentation, or use of FCS on Equipment not specified by Itron; (iv) incorrect data, or data entry or output by Customer or a third-party; (v) third-party software, hardware or firmware not provided or authorized by Itron in writing; (vi) a force majeure event; or (vii) viruses or security vulnerabilities introduced into the Itron FCS Software or Customer’s systems through no fault of Itron.
1.4 Delivery & Invoicing. Customer will be invoiced for FCS Software upon delivery to Customer, which may be made by making FCS Software available to the distributor or Customer via electronic means or by delivery on physical media.
2. Itron Mobile for FCS
2.1 Tier-Based Annual Subscription Fee. Itron Mobile is offered as an annual subscription service. The subscription fee is charged on fixed numerical range of meters or endpoints (a “Tier”). The annual subscription fee for each Tier are identified in the Quote.
2.2 Commencement of Annual Subscription. The initial Itron Mobile subscription term begins when Itron Mobile is set-up by Itron.
2.3 One-Time Itron Mobile Set-Up Fee. Customer will be charged a one-time set-up fee.
2.4 Subscription Auto-Renewal. Customer’s Itron Mobile subscription will renew automatically for one-year terms, unless either Itron or Customer gives ninety (90) days’ prior written notice of intent not to renew.
2.5 No Termination for Convenience. Neither Itron nor Customer may terminate Itron Mobile during a subscription term.
2.6 Annual Subscription Fee Adjustment. Itron has the right to adjust the subscription fee for each renewal term, without regard to Tier.
2.7 Tier Adjustment. Itron has the right to adjust Customer’s subscription fee at any time if Customer’s use of Itron Mobile exceeds Customer’s Tier. Fees adjusted under this Section 2.5 will normally be invoiced within thirty to sixty days depending on when meter or endpoint provisioning occurs.
2.8 Relationship to Licensed FCS Software and Maintenance & Support. Customer may be required to update or upgrade its licensed FCS Software Tier from time to time in order to ensure full functionality of Itron Mobile. Customer’s subscription and right to use Itron Mobile will terminate if Customer’s FCS Software license is terminated.
2.9 Compatible Mobile Devices. Itron Mobile is designed to work in connection with mobile devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Itron Mobile work with any other mobile devices.
2.10 Customer’s Obligation to Protect Customer Information on Mobile Devices. Customer must take steps to protect Customer information stored on mobile devices. User identification codes, passwords, and any information provided to Customer as part of Itron’s security procedures must be treated by Customer as confidential and must not be disclosed to any third-party. Customer is at all times responsible for its employees and subcontractors’ use of Itron Mobile. Itron has the right to disable any user identification codes or passwords if Customer or its employees and contractors have failed to comply with any of the provisions of this Agreement.
2.11 Internet Connectivity. Itron Mobile requires Internet connectivity, which Customer is solely responsible for obtaining and paying for.
2.12 Disclaimer of Liability. Itron accepts no responsibility for any internet services failure, mobile device failure, or for any loss or damage of any kind caused by such failure.
3. FCS Maintenance & Support.
3.1 Technical Support Services. Upon validation of Customer’s maintenance entitlement, Itron will provide technical support services, which includes system troubleshooting and problem diagnosis, release or system management consulting, and recommendations for fully utilizing FCS. Customer acknowledges and agrees that technical support services are not intended as a substitute for training of Customer personnel. Customer shall designate up to two FCS resources to act as primary service contacts to the Itron technical support services team. Customer primary service contacts must be trained and qualified on the operation and use of FCS via Itron provided or Itron approved FCS training programs.
3.2 Maintenance & Support Year. Maintenance and support services are offered as an annual service, billable in advance and renewable annually. Each annual term is referred to as a “Maintenance & Support Year.”
3.2.1 Commencement of Maintenance & Support Services Fees; Invoicing & Payment. Maintenance and support services for FCS Software commence upon delivery of FCS Software to Customer, and Itron will then invoice Customer for those services. Customer will pay the invoice within thirty (30) days of receipt.
3.3 Annual Adjustment. Maintenance and support services fees are subject to an annual adjustment upon renewal. Additionally, Maintenance fees may be further adjusted upon an increase or decrease in Customer’s endpoint count which exceeds or decreases their current licensed meter / endpoint tier.
3.4 Renewals. Itron will provide Customer with a renewal notice at least one-hundred twenty (120) days prior to the end of the Maintenance & Support Year. Customer must notify Itron within thirty (30) days after receiving Itron’s renewal notice if Customer wishes to change service coverage or does not wish to renew services. Otherwise, maintenance and support services will automatically renew, and Customer will be obligated to pay for the new Maintenance & Support Year.
3.5 Effect of Early Termination by Customer. Itron will not refund prepaid fees if Customer terminates maintenance and support services without cause prior to the expiration of Maintenance & Support Year.
3.6 Restoring Maintenance & Support Services. If Customer discontinues maintenance and support services and thereafter wishes to resume them, Customer must notify Itron in writing of its request and pay Itron’s then-current re-initiation fee.
3.7 Effect of Termination for Cause by Itron. Itron will not refund prepaid maintenance and support services fees if Itron terminates maintenance and support services for cause prior to the expiration of Maintenance & Support Year.
3.8 Client Service Guideline Documents. Itron maintains Client Service Guideline documents to help Customer work effectively with Itron’s Global Support Service team. Itron will instruct Customer on how to obtain those documents. Customer will adhere to the guideline processes to insure prompt and accurate service.
3.9 Itron Support Service Levels. Itron uses a severity level category system to prioritize support services requests, described in the Support Service Levels Table below.
3.10 Customer Obligation to Install Releases. Itron will only provide support services for Itron software that is kept current by Customer. Customer must be operating the most recent system release. Customer must have installed and tested one of the two (2) prior service pack releases. Customer will test and install system releases and service pack releases within twelve (12) months of being made available to Customer.
3.11 Installation Support. Support services for Customer installation of Itron software includes limited remote phone support for Itron certified, production server configurations licensed by Customer, during standard business hours. At Customer’s request, Itron may provide additional installation services at Itron’s then current rates.
3.12 Mandatory Revisions. Customer must install all mandatory revisions. Mandatory revisions will be determined by Itron. Mandatory revisions are intended to address a material software error, a material security breach, or a third-party infringement claim or suit of any kind. Itron disclaims all liability related to or arising out of customer’s failure to install a mandatory revision in a timely fashion.
3.13 Exclusions. Itron shall have no obligation to provide maintenance and support services for, or liability to, Customer for Itron software adversely affected by (i) use of Itron software in combination with software, equipment, or communications networks not authorized by Itron or referenced in the Itron software documentation as compatible, including Software operated on Itron Equipment that has been serviced or repaired by a third party that is not Itron certified; (ii) modification to Itron software by anyone other than Itron, (iii) failure to perform customer responsibilities described describe in these maintenance and support services terms, (iv) the use of a version of Itron software that is not supported by Itron; (v) Customer’s failure to implement a hot fix or mandatory revision provided by Itron; (vi) maintenance and/or support of Itron software other than by Itron; or (vii) viruses introduced through no fault of Itron.
3.14 End of Maintenance & Support. Itron has the right to discontinue maintenance and support services for Itron software. Itron will normally discontinue maintenance and support services at the end of the current Maintenance Year, in which case Itron will give Customer written notice no less than ninety (90) days prior to expiration of the Maintenance Year. In some cases, Itron may decide to discontinue maintenance and support services in a future Maintenance Year, and if the end of support date takes effect prior to the end of that future Maintenance Year, maintenance and support services fees will be pro-rated through the appropriate end of support date.
3.15 Optional Support for Discontinued Itron Software. At Customer’s request, Itron may elect to provide custom support for discontinued Itron software at Itron’s then-current rates, but Itron is under no obligation to do so.
3.16 Itron Support Service Levels Table. Parties shall work cooperatively to address reported errors in accordance with these Priorities and Service levels.
Severity Level 1
| Definition | Critical Business Impact / System Down: An error for which there is no work-around, which causes the software or a critical business function / process of the Itron system to be unavailable. System use and operation cannot continue. An “error” means a failure of the software to substantially comply with the applicable published specifications. |
| Reporting | Severity 1 errors must be reported by phone to initiate the Severity 1 response process. A Severity 1 Service Request (“SR”) initiated by email or web interface are logged as a Severity 3 until reviewed by Itron Technical Support Services and validated as a higher priority. |
| Responses | During after-hour periods, Itron will respond to a critical support voice message within 15 minutes by a return call to Customer, which will validate receipt of the critical support call and begin the SR process. During regular business-hours Itron will begin the SR process during Customer’s initial call. Following the start of the SR process Itron will respond to Customer’s SR within 2 business hours with an investigation response. Following the investigation response, Itron will update Customer at three hour intervals during each day the SR remains unresolved, or as otherwise agreed by Itron and Customer. Customer will respond to an Itron inquiry or request within three hours. |
| Effort Level / Escalation Path | Itron will make diligent efforts on a 24x7 basis*, or as otherwise agreed by Itron and Customer. An SR shall be escalated to Itron’s Global Support Service (“GSS”) management team if a fix is not provided within 1 business day of Itron’s receipt of the Customers call and creation of the SR. A fix is a correction of an error, including a work-around, in order for the software to function in accordance with the applicable published specifications. *24X7 support for Severity Level 1 errors is not currently available for Itron meter products, energy forecasting and load research products, and distribution products. |
Severity Level 2
| Definition | Moderate Business Impact / Degraded Operation: An error other than a Severity Level 1 error, for which there is no work-around, which limits access or use of the software or a business function, causing the system to miss required business interface or deadlines. The system remains available for operation but in a restricted fashion. |
| Reporting | Severity 2 errors must be reported by phone to initiate the Severity 2 response process. SRs initiated by email or web interface are logged as a Severity 3 until reviewed by Itron Technical Support Services and validated as a higher priority. |
| Responses | Customer SR within 1 business day and will update the SR at least every other day. Customer will respond to an Itron inquiry or request within 1 business day. |
| Effort Level / Escalation Path | Itron will make diligent efforts during normal business hours. SRs shall be escalated to Itron’s GSS management team if a fix is not provided within 3 business days of Itron’s receipt of Customer’s call and creation of the SR. |
Severity Level 3
| Definition | Minor Business Impact / Compromised Operation: An error other than a Severity Level 1 or Severity Level 2 error that has an inconvenient use of or access to a software function. (e.g., a feature is not working as documented but a work-around is available and significant business functions are not materially impaired). |
| Reporting | |
| Responses | Itron will respond to Customer SR within 2 business days. |
| Effort Level / Escalation Path | Itron technical representatives will make diligent efforts during normal business hours. |
Severity Level 4
| Definition | No Business Impact / Standard Operation: An error other than a Severity Level 1, Severity Level 2 or Severity Level 3 error. Generally, a cosmetic error or an error which has not degraded Customer’s use of the system |
| Reporting | |
| Responses | Itron will respond to Customer SR within 3 business days, or as otherwise agreed by Itron and Customer. |
| Effort Level / Escalation Path | Itron support representatives will devote commercially reasonable efforts during normal business hours. |
Severity Level 5
| Definition | No Business Impact. Customer SR for an enhancement or new functionality. |
| Reporting | |
| Responses | Not applicable. |
| Effort Level / Escalation Path | The SR will be evaluated as a potential, future product enhancement. If the enhancement or new functionality requires more immediate attention for Customer, Itron will engage Itron’s professional services group to create a customized proposal for Customer, at Itron’s then-current services rates. |
4. Itron Equipment Terms
4.1 Definitions.
“Equipment” means Itron Equipment and Third-Party Equipment.
“Firmware” means the object code version of software embedded in Equipment.
“Itron Equipment” means equipment manufactured by or on behalf of Itron, such as Itron radios, hand-held field collection devices, meters and end points.
“Third-Party Equipment” means equipment that is not manufactured by or on behalf of Itron, such as mobile phones, tablets, and their accessories.
“Itron Equipment Warranty Period” means the Itron Equipment warranty period, commencing upon the actual ship date, which shall be one (1) year, unless otherwise stated in the attached warranty schedule.
4.2 Ordering. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Purchase orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron. All Equipment sales are final. Itron only accepts returns for Itron Equipment under warranty or if Itron has shipped Equipment other than ordered by Customer and such Equipment is unopened and unused,
4.3 Invoicing. Itron will invoice Customer for Equipment upon the date of shipment.
4.4 Shipment, Title & Risk of Loss. Equipment title and risk of loss shall transfer to Customer upon shipment. Customer shall be responsible for all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax relating to importation of Equipment.
4.5 Documentation. Itron will make its standard Documentation for Itron Equipment available via download. Itron will provide download instructions.
4.6 Equipment Firmware. The purchase of Itron Equipment includes a perpetual license under Itron copyrights to use Firmware in the Itron Equipment. The license to any Firmware in Third-Party Equipment purchased by Customer through Itron shall be between Customer and the manufacturer of the Third-Party Equipment.
4.7 Limited Itron Equipment Warranty & Warranty Exclusions. Itron warrants solely to Customer that, during the Itron Equipment Warranty Period, Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications. As Customer’s sole and exclusive remedy, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Itron Equipment Warranty Period in accordance with Itron’s then current RMA policy and procedures, or (ii) provide Customer with a Firmware fix to correct the nonconformity. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Itron Equipment Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer. This Itron Equipment warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with equipment, software, or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; or (c) Customer’s failure to operate Itron Equipment in accordance with its Documentation. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
4.8 Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third-Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer. Customer must coordinate all Third-Party Equipment warranty returns with the Third-Party Equipment manufacturer.
4.9 Equipment Maintenance. Itron provides estimates for post-warranty maintenance and repair services of Customer’s Equipment, as part of the Quote. Initiation, billing, renewal and termination of Equipment maintenance services is managed within the same processes defined in Section 3, FCS Maintenance and Support.
GENERAL TERMS & CONDITIONS OF SALE
5. Purchase Orders. Purchase orders are required to order Itron products and services. Purchase orders are subject to Itron credit approval. Pre-printed terms and any contingencies, additions, or conflicting terms on a purchase order submitted by a customer will be null and void.
6. Fees, Taxes, and Payment. Fees and charges for Itron products and services identified in the Quote are exclusive of transaction taxes and duties. Transaction taxes and duties will be invoiced in the absence of a valid customer tax exemption certificate or direct pay permit. Payment terms are net thirty days from the date of invoice. All payments must be made in US currency. Interest will accrue on late payments at the rate of 1.0% of the outstanding balance per month, or the maximum rate permitted by law until paid. In the event of late payments, Itron may condition future purchases on prepayment or payment in less than thirty (30) days.
7. Confidentiality. All oral or written information exchanged between Itron and Customer in connection with performance under this Agreement is regarded as confidential information. All such information must be treated as confidential and must not be disclosed to any third-parties without obtaining the written consent of the party that provided the information, unless such information: (a) is or will be in the public domain (other than through the receiving party’s unauthorized disclosure); or (b) is under the obligation to be disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities. This section shall survive the termination of this Agreement for any reason.
8. Customer Data. All data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement will be treated by Itron as confidential information. Itron will use safeguards reasonably designed to prevent unauthorized collection, access, disclosure, and use of the data while in Itron’s custody. Customer agrees to cooperate to investigate and remedy any safeguards breach and any related disputes, inquiries, or claims.
9. Indemnification Against Third-Party Claims. Itron will defend and indemnify Customer and Customer’s successors and assigns, officers, directors, employees, representatives, and agents from and against any and all claims, demands, suits, actions, or causes of action of any kind whatsoever for damages, losses, costs and/or expenses (including legal fees and disbursements) by an unaffiliated third-party (each a “Claim”) to the extent resulting from (a) damages to persons or real or tangible property, bodily injury or death arising in connection with this Agreement and caused by Itron’s gross negligence or intentional misconduct, or (b) any allegation that any Itron product or service infringes upon any such third-party’s intellectual property. Itron’s obligation to defend and indemnify does not apply to equipment or software that is not manufactured or developed by or on behalf of Itron, unless the third-party equipment or software has been embedded in Itron products or services.
10. Conditions to Infringement Claim Defense. Itron’s infringement defense obligation is conditioned on Itron’s right to (a) procure the rights for its customer to continue using allegedly infringing products and services, (b) replace them with functionally equivalent alternatives, or (c) modify them to become non-infringing. If those options are not commercially reasonable in Itron’s sole judgment, Itron shall have the right to require its customer to cease using the products and services, and Itron will refund the depreciated value of the affected product and the unused portion of the service.
11. Exclusions to Infringement Claim Defense. Itron shall have no obligation under this Agreement to the extent any claim of infringement results from: (i) use of an Itron product or service, other than as permitted under this Agreement or as intended by Itron, if the infringement would not have occurred but for such use; (ii) use of any Itron product or service in combination with any other product, equipment, software or data, if the infringement would not have occurred but for such combination; (iii) any use of any release of Itron software or any firmware other than the most current release made available to Customer, (iv) any infringement claims resulting from the customer’s refusal to implement, or delay in implementing, modifications recommended by Itron to avoid or mitigate such claim, (v) any modification to an Itron product or services by a person other than Itron or an authorized representative of Itron, or (vi) specific instructions to Itron by its customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of its customer.
12. Right to Defend Infringement Claims. Customer must provide prompt written notice of a claim alleging infringement by Itron products and services. Itron has the right to control the defense, settlement, adjustment or compromise of the claim. Itron’ customer will reasonably assist Itron with the defense. Itron shall not consent to any judgment or settlement of an infringement claim that creates an obligation on its customer without first obtaining the customer’s prior written consent.
13. THIRD-PARTY CLAIM DISCLAIMER. SECTIONS 8 THROUGH 11 CONSTITUTE ITRON’S SOLE AND EXCLUSIVE OBLIGATION WITH RESPECT TO THIRD-PARTY CLAIMS BROUGHT AGAINST ITS CUSTOMER.
14. NO CONSEQUENTIAL DAMAGES. NEITHER PARTY WILL BE LIABLE HEREUNDER FOR CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS OR SAVINGS) FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF THE PARTY WAS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES.
15. FEE LIMITATION. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR DAMAGES IN EXCESS OF ONE-HUNDRED PERCENT (100%) OF THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT APPLICABLE TO PERFORMANCE OR DELIVERABLE TO WHICH THE CLAIM IS RELATED.
16. Reservation of Intellectual Property. Itron reserves all rights, title and interest in and to all of its intellectual property. Customer reserves all rights, title and interest in and to all of its intellectual property.
17. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into its products and services any suggestions, enhancement requests, recommendations or other feedback provided by its customer.
18. Waivers. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision. No waiver granted as to any one provision of this Agreement shall constitute a subsequent waiver of such provision or of any other provision thereof, nor shall it constitute the waiver of any performance other than the actual performance specifically waived.
19. No Assignment. This Agreement is personal to each party and is not permitted to be assigned in whole or in part, except that Itron has the right to assign, by contract or by operation of law, all or part of this Agreement to any entity controlled by or under common control with Itron.
20. Compliance with Law. Itron and Customer will at all times perform their respective obligations under this Agreement in compliance in all material respects with all applicable foreign, domestic, state, and local laws and regulations of all applicable foreign and domestic jurisdictions. No export rights are granted under this Agreement, and Customer must not directly or indirectly provide, export or re-export, or otherwise make available (in any form, including visual access), Itron products or technology in violation of any such laws or regulations, without all necessary approvals or licenses. Products and technology may not be provided or made available either directly or indirectly, (i) into Cuba, Iran, North Korea, Sudan, Syria, the Crimea region of Ukraine or any other country subject to United States trade sanctions, or to individuals or entities controlled by such countries or to nationals or residents of such countries (other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions); or (ii) to anyone on any denied, prohibited, or unverified list maintained by the United States Government, including the Office of Foreign Assets Control (OFAC) Specially Designated Nationals (SDN) List. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Notices. All notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by overnight delivery, (iv) the second business day after sending by confirmed facsimile, or (iv), except for legal notices, the first business day after sending by email.
22. Severability. If any provisions of this Agreement or its application to particular circumstances is determined by a court to be invalid or unenforceable, those provisions (or its application to those circumstances) will be deemed stricken and the remainder of the provisions will continue in effect.
23. Force Majeure. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, labor disputes, industry wide shortages of supplies, actions of governmental entities, riots, war, terrorism, fire, epidemics, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the defaulting party shall be extended for a period equal to the period during which such event prevented such party’s performance.
24. No Third-Party Rights. This Agreement is entered into only for the benefit of Customer and Itron, and no other person or entity shall have the right to enforce any of its terms.
25. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
26. Entire Agreement. This Agreement constitutes the entire agreement between Itron and Customer with respect to the subject matter hereof. All prior agreements, representations, warranties, statements, negotiations, understandings, and undertakings are superseded, and Customer represents and acknowledges that it has not relied on any representation or warranty other than those explicitly set forth in this Agreement.
Itron Equipment Warranty Schedule
| Itron Equipment | Itron Equipment Warranty Terms |
| Centron and Sentinel electricity meters | 3 years from shipment |
| Repairs for out-of-warranty electricity meters | Itron shall perform the repairs with reasonable care and in a diligent and competent manner. Itron's sole obligation in connection with repair warranty failures shall be, at its option, to correct or re-perform repairs or refund to Customer the amount paid for the repairs. Customer must report any deficiencies in repair work to Itron in writing within 90 days of shipment to receive the remedies described herein. |
| OpenWay Riva Water Module (including battery) | Full warranty consistent with the warranty terms in the Agreement for the first 10 years from shipment. For warranty claims in years 11 through 15, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 50 percent of its then-current list price for the replacement product. For warranty claims in years 16 through 20, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 25 percent of its then-current list price for the replacement product. The warranty on Itron water endpoints shall be void if the endpoint is used in connection with a third party reading system that is not approved by Itron. |
| 100W and 100W+ series water endpoints (including battery) | Full warranty consistent with the warranty terms in the Agreement for the first 10 years from shipment. For warranty claims in years 11 through 15, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 50 percent of its then-current list price for the replacement product. For warranty claims in years 16 through 20, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 25 percent of its then-current list price for the replacement product. The warranty on Itron water endpoints shall be void if the endpoint is used in connection with a third party reading system that is not approved by Itron. |
| OpenWay Riva Leak Sensor | Full warranty consistent with the warranty terms in the Agreement for the first 5 years from shipment. |
| Leak Sensor (Non-OpenWay Riva) | Full warranty consistent with the warranty terms in the Agreement for the first 10 years from shipment. For warranty claims in years 11 through 15, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 50 percent of its then-current list price for the replacement product. For warranty claims in years 16 through 20, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 25 percent of its then-current list price for the replacement product. |
| Upgraded handhelds or Mobile Collectors | 90 days from shipment. |
| METRIS Meters and I-250 Meters | Itron warrants that eighty five percent (85%) or more of the METRIS Meters and I-250 Meters shipped to Customer during any calendar year will be free from defects in materials and workmanship such that they maintain set point calibration that is within two percent of their original factory set point calibration (open and check) (“Calibration Warranty”). The foregoing Calibration Warranty is valid until the earlier of (i) 15 years from shipment to Customer of the METRIS Meter and I-250 Meter for which warranty coverage is sought, (ii) the measurement of more than one million cubic feet of gas measured by such meter, or (iii) until such meter is replaced by Customer in connection with a periodic meter change-out. Itron's sole obligation and Customer's exclusive remedy in connection with the breach of a warranty provided under this Section shall be for Itron, at its option, to repair any non-conforming METRIS Meters and I-250 Meters, provided that if Itron determines that it is unable to repair a non-conforming METRIS Meter and I-250 Meter, Itron will refund to Customer the depreciated value of such non-conforming METRIS Meter and I-250 Meter. At the request of Itron, Customer will provide evidence of a meter’s service history to verify warranty coverage. |
Effective November 22nd 2022 to August 8th 2024
DownloadTable of Contents
SOFTWARE LICENSE AND SERVICES AGREEMENT
ACCEPTANCE OF TERMS
By clicking “AGREE”, Customer agrees to license the Field Collection System software (“FCS Software”) and to purchase the FCS Software maintenance and support services described in the quote or pricing summary provided by Itron, Inc. or by Itron, Inc.’s distributor (the “Quote”), subject to the terms and conditions of this Agreement.
By clicking “Agree,” Customer also acknowledges that it has read and accepts the terms and conditions of this Agreement in their entirety. Customer should print a copy of this Agreement for its records.
If Customer has chosen to purchase Itron Mobile in addition to licensing FCS Software and purchasing maintenance and support for FCS, that will be reflected in the Quote, the Itron Mobile terms and conditions of this Agreement will also apply. If Customer has not chosen to purchase Itron Mobile, then the Itron Mobile terms and conditions of this Agreement do not apply.
If Customer has also chosen to purchase Itron Equipment or Third-Party Equipment (as defined in Section 4.1), that will be reflected in the Quote and the equipment purchase terms and conditions of this Agreement will apply. If Customer has not chosen to purchase Itron Equipment or Third-Party Equipment, then the equipment terms and conditions of this Agreement do not apply.
If Customer does not click “Agree,” Customer will not be provided the FCS Software, FCS Software maintenance services, Itron Mobile for FCS, or Itron Equipment or Third-Party Equipment.
TERMS & CONDITIONS SPECIFIC TO FCS, MAINTENANCE & SUPPORT, AND ITRON MOBILE
1. FCS Software
1.1 License. Subject to receipt of license fee payment by Customer or by Itron’s distributor where Customer has received a distributor Quote, Itron grants Customer a perpetual, non-exclusive and non-transferable license to use the FCS Software and FCS Software documentation for Customer’s internal business purposes in connection with the number of endpoints or other devices specified in the Quote, subject to the restrictions described below.
1.2 License Restrictions. The FCS Software may only be installed in one production environment and one test environment on Customer premises. Customer is not permitted to copy the FCS Software other than to make one machine readable copy for disaster recovery or archival purposes. Customer is not permitted to (i) modify or create any derivative works from the FCS Software, (ii) include or combine the FCS Software with any software, equipment, or hardware other than as authorized by Itron, (iii) use the FCS Software to provide services to third-parties, (iv) reverse assemble, decompile, reverse engineer the FCS Software or otherwise attempt to derive its source code, (v) export the FCS Software, or (iv) use the FCS Software to create products or services that compete with any of Itron’s products or services. Customer’s breach of these restrictions shall constitute a material breach of this Agreement and shall result in revocation and immediate termination of all rights and licenses granted under this Agreement. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
1.3 Limited Itron FCS Software Warranty. For a period of ninety (90) days from the date of shipment, Itron warrants to Customer that the FCS Software will substantially conform in all material respects with Itron published specifications. As Customer’s sole and exclusive remedy for any breach of this warranty, Itron will during the warranty period set forth in this Section, either repair or replace non-conforming FCS Software to substantially conform to Itron published specifications. After the ninety (90) day period, any Itron FCS Software non-conformities will be addressed under maintenance services terms. This software warranty does not apply to non-conformities due to: (i) modifications not made or approved by Itron in writing; (ii) Customer’s or any third-party’s negligence or intentional acts; (iii) misuse or abuse, including the failure to use or install FCS Software in accordance with the FCS Software documentation, or use of FCS on Equipment not specified by Itron; (iv) incorrect data, or data entry or output by Customer or a third-party; (v) third-party software, hardware or firmware not provided or authorized by Itron in writing; (vi) a force majeure event; or (vii) viruses or security vulnerabilities introduced into the Itron FCS Software or Customer’s systems through no fault of Itron.
1.4 Delivery & Invoicing. Customer will be invoiced for FCS Software upon delivery to Customer, which may be made by making FCS Software available to the distributor or Customer via electronic means or by delivery on physical media.
2. Itron Mobile for FCS
2.1 Tier-Based Annual Subscription Fee. Itron Mobile is offered as an annual subscription service. The subscription fee is charged on fixed numerical range of meters or endpoints (a “Tier”). The annual subscription fee for each Tier are identified in the Quote.
2.2 Commencement of Annual Subscription. The initial Itron Mobile subscription term begins when Itron Mobile is set-up by Itron.
2.3 One-Time Itron Mobile Set-Up Fee. Customer will be charged a one-time set-up fee.
2.4 Subscription Auto-Renewal. Customer’s Itron Mobile subscription will renew automatically for one-year terms, unless either Itron or Customer gives ninety (90) days’ prior written notice of intent not to renew.
2.5 No Termination for Convenience. Neither Itron nor Customer may terminate Itron Mobile during a subscription term.
2.6 Annual Subscription Fee Adjustment. Itron has the right to adjust the subscription fee for each renewal term, without regard to Tier.
2.7 Tier Adjustment. Itron has the right to adjust Customer’s subscription fee at any time if Customer’s use of Itron Mobile exceeds Customer’s Tier. Fees adjusted under this Section 2.5 will normally be invoiced within thirty to sixty days depending on when meter or endpoint provisioning occurs.
2.8 Relationship to Licensed FCS Software and Maintenance & Support. Customer may be required to update or upgrade its licensed FCS Software Tier from time to time in order to ensure full functionality of Itron Mobile. Customer’s subscription and right to use Itron Mobile will terminate if Customer’s FCS Software license is terminated.
2.9 Compatible Mobile Devices. Itron Mobile is designed to work in connection with mobile devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Itron Mobile work with any other mobile devices.
2.10 Customer’s Obligation to Protect Customer Information on Mobile Devices. Customer must take steps to protect Customer information stored on mobile devices. User identification codes, passwords, and any information provided to Customer as part of Itron’s security procedures must be treated by Customer as confidential and must not be disclosed to any third-party. Customer is at all times responsible for its employees and subcontractors’ use of Itron Mobile. Itron has the right to disable any user identification codes or passwords if Customer or its employees and contractors have failed to comply with any of the provisions of this Agreement.
2.11 Internet Connectivity. Itron Mobile requires Internet connectivity, which Customer is solely responsible for obtaining and paying for.
2.12 Disclaimer of Liability. Itron accepts no responsibility for any internet services failure, mobile device failure, or for any loss or damage of any kind caused by such failure.
3. FCS Maintenance & Support.
3.1 Technical Support Services. Upon validation of Customer’s maintenance entitlement, Itron will provide technical support services, which includes system troubleshooting and problem diagnosis, release or system management consulting, and recommendations for fully utilizing FCS. Customer acknowledges and agrees that technical support services are not intended as a substitute for training of Customer personnel. Customer shall designate up to two FCS resources to act as primary service contacts to the Itron technical support services team. Customer primary service contacts must be trained and qualified on the operation and use of FCS via Itron provided or Itron approved FCS training programs.
3.2 Maintenance & Support Year. Maintenance and support services are offered as an annual service, billable in advance and renewable annually. Each annual term is referred to as a “Maintenance & Support Year.”
3.2.1 Commencement of Maintenance & Support Services Fees; Invoicing & Payment. Maintenance and support services for FCS Software commence upon delivery of FCS Software to Customer, and Itron will then invoice Customer for those services. Customer will pay the invoice within thirty (30) days of receipt.
3.3 Annual Adjustment. Maintenance and support services fees are subject to an annual adjustment upon renewal. Additionally, Maintenance fees may be further adjusted upon an increase or decrease in Customer’s endpoint count which exceeds or decreases their current licensed meter / endpoint tier.
3.4 Renewals. Itron will provide Customer with a renewal notice at least one-hundred twenty (120) days prior to the end of the Maintenance & Support Year. Customer must notify Itron within thirty (30) days after receiving Itron’s renewal notice if Customer wishes to change service coverage or does not wish to renew services. Otherwise, maintenance and support services will automatically renew, and Customer will be obligated to pay for the new Maintenance & Support Year.
3.5 Effect of Early Termination by Customer. Itron will not refund prepaid fees if Customer terminates maintenance and support services without cause prior to the expiration of Maintenance & Support Year.
3.6 Restoring Maintenance & Support Services. If Customer discontinues maintenance and support services and thereafter wishes to resume them, Customer must notify Itron in writing of its request and pay Itron’s then-current re-initiation fee.
3.7 Effect of Termination for Cause by Itron. Itron will not refund prepaid maintenance and support services fees if Itron terminates maintenance and support services for cause prior to the expiration of Maintenance & Support Year.
3.8 Client Service Guideline Documents. Itron maintains Client Service Guideline documents to help Customer work effectively with Itron’s Global Support Service team. Itron will instruct Customer on how to obtain those documents. Customer will adhere to the guideline processes to insure prompt and accurate service.
3.9 Itron Support Service Levels. Itron uses a severity level category system to prioritize support services requests, described in the Support Service Levels Table below.
3.10 Customer Obligation to Install Releases. Itron will only provide support services for Itron software that is kept current by Customer. Customer must be operating the most recent system release. Customer must have installed and tested one of the two (2) prior service pack releases. Customer will test and install system releases and service pack releases within twelve (12) months of being made available to Customer.
3.11 Installation Support. Support services for Customer installation of Itron software includes limited remote phone support for Itron certified, production server configurations licensed by Customer, during standard business hours. At Customer’s request, Itron may provide additional installation services at Itron’s then current rates.
3.12 Mandatory Revisions. Customer must install all mandatory revisions. Mandatory revisions will be determined by Itron. Mandatory revisions are intended to address a material software error, a material security breach, or a third-party infringement claim or suit of any kind. Itron disclaims all liability related to or arising out of customer’s failure to install a mandatory revision in a timely fashion.
3.13 Exclusions. Itron shall have no obligation to provide maintenance and support services for, or liability to, Customer for Itron software adversely affected by (i) use of Itron software in combination with software, equipment, or communications networks not authorized by Itron or referenced in the Itron software documentation as compatible, including Software operated on Itron Equipment that has been serviced or repaired by a third party that is not Itron certified; (ii) modification to Itron software by anyone other than Itron, (iii) failure to perform customer responsibilities described describe in these maintenance and support services terms, (iv) the use of a version of Itron software that is not supported by Itron; (v) Customer’s failure to implement a hot fix or mandatory revision provided by Itron; (vi) maintenance and/or support of Itron software other than by Itron; or (vii) viruses introduced through no fault of Itron.
3.14 End of Maintenance & Support. Itron has the right to discontinue maintenance and support services for Itron software. Itron will normally discontinue maintenance and support services at the end of the current Maintenance Year, in which case Itron will give Customer written notice no less than ninety (90) days prior to expiration of the Maintenance Year. In some cases, Itron may decide to discontinue maintenance and support services in a future Maintenance Year, and if the end of support date takes effect prior to the end of that future Maintenance Year, maintenance and support services fees will be pro-rated through the appropriate end of support date.
3.15 Optional Support for Discontinued Itron Software. At Customer’s request, Itron may elect to provide custom support for discontinued Itron software at Itron’s then-current rates, but Itron is under no obligation to do so.
3.16 Itron Support Service Levels Table. Parties shall work cooperatively to address reported errors in accordance with these Priorities and Service levels.
Severity Level 1
| Definition | Critical Business Impact / System Down: An error for which there is no work-around, which causes the software or a critical business function / process of the Itron system to be unavailable. System use and operation cannot continue. An “error” means a failure of the software to substantially comply with the applicable published specifications. |
| Reporting | Severity 1 errors must be reported by phone to initiate the Severity 1 response process. A Severity 1 Service Request (“SR”) initiated by email or web interface are logged as a Severity 3 until reviewed by Itron Technical Support Services and validated as a higher priority. |
| Responses | During after-hour periods, Itron will respond to a critical support voice message within 15 minutes by a return call to Customer, which will validate receipt of the critical support call and begin the SR process. During regular business-hours Itron will begin the SR process during Customer’s initial call. Following the start of the SR process Itron will respond to Customer’s SR within 2 business hours with an investigation response. Following the investigation response, Itron will update Customer at three hour intervals during each day the SR remains unresolved, or as otherwise agreed by Itron and Customer. Customer will respond to an Itron inquiry or request within three hours. |
| Effort Level / Escalation Path | Itron will make diligent efforts on a 24x7 basis*, or as otherwise agreed by Itron and Customer. An SR shall be escalated to Itron’s Global Support Service (“GSS”) management team if a fix is not provided within 1 business day of Itron’s receipt of the Customers call and creation of the SR. A fix is a correction of an error, including a work-around, in order for the software to function in accordance with the applicable published specifications. *24X7 support for Severity Level 1 errors is not currently available for Itron meter products, energy forecasting and load research products, and distribution products. |
Severity Level 2
| Definition | Moderate Business Impact / Degraded Operation: An error other than a Severity Level 1 error, for which there is no work-around, which limits access or use of the software or a business function, causing the system to miss required business interface or deadlines. The system remains available for operation but in a restricted fashion. |
| Reporting | Severity 2 errors must be reported by phone to initiate the Severity 2 response process. SRs initiated by email or web interface are logged as a Severity 3 until reviewed by Itron Technical Support Services and validated as a higher priority. |
| Responses | Customer SR within 1 business day and will update the SR at least every other day. Customer will respond to an Itron inquiry or request within 1 business day. |
| Effort Level / Escalation Path | Itron will make diligent efforts during normal business hours. SRs shall be escalated to Itron’s GSS management team if a fix is not provided within 3 business days of Itron’s receipt of Customer’s call and creation of the SR. |
Severity Level 3
| Definition | Minor Business Impact / Compromised Operation: An error other than a Severity Level 1 or Severity Level 2 error that has an inconvenient use of or access to a software function. (e.g., a feature is not working as documented but a work-around is available and significant business functions are not materially impaired). |
| Reporting | |
| Responses | Itron will respond to Customer SR within 2 business days. |
| Effort Level / Escalation Path | Itron technical representatives will make diligent efforts during normal business hours. |
Severity Level 4
| Definition | No Business Impact / Standard Operation: An error other than a Severity Level 1, Severity Level 2 or Severity Level 3 error. Generally, a cosmetic error or an error which has not degraded Customer’s use of the system |
| Reporting | |
| Responses | Itron will respond to Customer SR within 3 business days, or as otherwise agreed by Itron and Customer. |
| Effort Level / Escalation Path | Itron support representatives will devote commercially reasonable efforts during normal business hours. |
Severity Level 5
| Definition | No Business Impact. Customer SR for an enhancement or new functionality. |
| Reporting | |
| Responses | Not applicable. |
| Effort Level / Escalation Path | The SR will be evaluated as a potential, future product enhancement. If the enhancement or new functionality requires more immediate attention for Customer, Itron will engage Itron’s professional services group to create a customized proposal for Customer, at Itron’s then-current services rates. |
4. Itron Equipment Terms
4.1 Definitions.
“Equipment” means Itron Equipment and Third-Party Equipment.
“Firmware” means the object code version of software embedded in Equipment.
“Itron Equipment” means equipment manufactured by or on behalf of Itron, such as Itron radios, hand-held field collection devices, meters and end points.
“Third-Party Equipment” means equipment that is not manufactured by or on behalf of Itron, such as mobile phones, tablets, and their accessories.
“Itron Equipment Warranty Period” means the Itron Equipment warranty period, commencing upon the actual ship date, which shall be one (1) year, unless otherwise stated in the attached warranty schedule.
4.2 Ordering. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Purchase orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron. All Equipment sales are final. Itron only accepts returns for Itron Equipment under warranty or if Itron has shipped Equipment other than ordered by Customer and such Equipment is unopened and unused,
4.3 Invoicing. Itron will invoice Customer for Equipment upon the date of shipment.
4.4 Shipment, Title & Risk of Loss. Equipment title and risk of loss shall transfer to Customer upon shipment. Customer shall be responsible for all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax relating to importation of Equipment.
4.5 Documentation. Itron will make its standard Documentation for Itron Equipment available via download. Itron will provide download instructions.
4.6 Equipment Firmware. The purchase of Itron Equipment includes a perpetual license under Itron copyrights to use Firmware in the Itron Equipment. The license to any Firmware in Third-Party Equipment purchased by Customer through Itron shall be between Customer and the manufacturer of the Third-Party Equipment.
4.7 Limited Itron Equipment Warranty & Warranty Exclusions. Itron warrants solely to Customer that, during the Itron Equipment Warranty Period, Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications. As Customer’s sole and exclusive remedy, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Itron Equipment Warranty Period in accordance with Itron’s then current RMA policy and procedures, or (ii) provide Customer with a Firmware fix to correct the nonconformity. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Itron Equipment Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer. This Itron Equipment warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with equipment, software, or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; or (c) Customer’s failure to operate Itron Equipment in accordance with its Documentation. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
4.8 Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third-Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer. Customer must coordinate all Third-Party Equipment warranty returns with the Third-Party Equipment manufacturer.
4.9 Equipment Maintenance. Itron provides estimates for post-warranty maintenance and repair services of Customer’s Equipment, as part of the Quote. Initiation, billing, renewal and termination of Equipment maintenance services is managed within the same processes defined in Section 3, FCS Maintenance and Support.
GENERAL TERMS & CONDITIONS OF SALE
5. Purchase Orders. Purchase orders are required to order Itron products and services. Purchase orders are subject to Itron credit approval. Pre-printed terms and any contingencies, additions, or conflicting terms on a purchase order submitted by a customer will be null and void.
6. Fees, Taxes, and Payment. Fees and charges for Itron products and services identified in the Quote are exclusive of transaction taxes and duties. Transaction taxes and duties will be invoiced in the absence of a valid customer tax exemption certificate or direct pay permit. Payment terms are net thirty days from the date of invoice. All payments must be made in US currency. Interest will accrue on late payments at the rate of 1.0% of the outstanding balance per month, or the maximum rate permitted by law until paid. In the event of late payments, Itron may condition future purchases on prepayment or payment in less than thirty (30) days.
7. Confidentiality. All oral or written information exchanged between Itron and Customer in connection with performance under this Agreement is regarded as confidential information. All such information must be treated as confidential and must not be disclosed to any third-parties without obtaining the written consent of the party that provided the information, unless such information: (a) is or will be in the public domain (other than through the receiving party’s unauthorized disclosure); or (b) is under the obligation to be disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities. This section shall survive the termination of this Agreement for any reason.
8. Customer Data. All data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement will be treated by Itron as confidential information. Itron will use safeguards reasonably designed to prevent unauthorized collection, access, disclosure, and use of the data while in Itron’s custody. Customer agrees to cooperate to investigate and remedy any safeguards breach and any related disputes, inquiries, or claims.
9. Indemnification Against Third-Party Claims. Itron will defend and indemnify Customer and Customer’s successors and assigns, officers, directors, employees, representatives, and agents from and against any and all claims, demands, suits, actions, or causes of action of any kind whatsoever for damages, losses, costs and/or expenses (including legal fees and disbursements) by an unaffiliated third-party (each a “Claim”) to the extent resulting from (a) damages to persons or real or tangible property, bodily injury or death arising in connection with this Agreement and caused by Itron’s gross negligence or intentional misconduct, or (b) any allegation that any Itron product or service infringes upon any such third-party’s intellectual property. Itron’s obligation to defend and indemnify does not apply to equipment or software that is not manufactured or developed by or on behalf of Itron, unless the third-party equipment or software has been embedded in Itron products or services.
10. Conditions to Infringement Claim Defense. Itron’s infringement defense obligation is conditioned on Itron’s right to (a) procure the rights for its customer to continue using allegedly infringing products and services, (b) replace them with functionally equivalent alternatives, or (c) modify them to become non-infringing. If those options are not commercially reasonable in Itron’s sole judgment, Itron shall have the right to require its customer to cease using the products and services, and Itron will refund the depreciated value of the affected product and the unused portion of the service.
11. Exclusions to Infringement Claim Defense. Itron shall have no obligation under this Agreement to the extent any claim of infringement results from: (i) use of an Itron product or service, other than as permitted under this Agreement or as intended by Itron, if the infringement would not have occurred but for such use; (ii) use of any Itron product or service in combination with any other product, equipment, software or data, if the infringement would not have occurred but for such combination; (iii) any use of any release of Itron software or any firmware other than the most current release made available to Customer, (iv) any infringement claims resulting from the customer’s refusal to implement, or delay in implementing, modifications recommended by Itron to avoid or mitigate such claim, (v) any modification to an Itron product or services by a person other than Itron or an authorized representative of Itron, or (vi) specific instructions to Itron by its customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of its customer.
12. Right to Defend Infringement Claims. Customer must provide prompt written notice of a claim alleging infringement by Itron products and services. Itron has the right to control the defense, settlement, adjustment or compromise of the claim. Itron’ customer will reasonably assist Itron with the defense. Itron shall not consent to any judgment or settlement of an infringement claim that creates an obligation on its customer without first obtaining the customer’s prior written consent.
13. THIRD-PARTY CLAIM DISCLAIMER. SECTIONS 8 THROUGH 11 CONSTITUTE ITRON’S SOLE AND EXCLUSIVE OBLIGATION WITH RESPECT TO THIRD-PARTY CLAIMS BROUGHT AGAINST ITS CUSTOMER.
14. NO CONSEQUENTIAL DAMAGES. NEITHER PARTY WILL BE LIABLE HEREUNDER FOR CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS OR SAVINGS) FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF THE PARTY WAS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES.
15. FEE LIMITATION. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR DAMAGES IN EXCESS OF ONE-HUNDRED PERCENT (100%) OF THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT APPLICABLE TO PERFORMANCE OR DELIVERABLE TO WHICH THE CLAIM IS RELATED.
16. Reservation of Intellectual Property. Itron reserves all rights, title and interest in and to all of its intellectual property. Customer reserves all rights, title and interest in and to all of its intellectual property.
17. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into its products and services any suggestions, enhancement requests, recommendations or other feedback provided by its customer.
18. Waivers. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision. No waiver granted as to any one provision of this Agreement shall constitute a subsequent waiver of such provision or of any other provision thereof, nor shall it constitute the waiver of any performance other than the actual performance specifically waived.
19. No Assignment. This Agreement is personal to each party and is not permitted to be assigned in whole or in part, except that Itron has the right to assign, by contract or by operation of law, all or part of this Agreement to any entity controlled by or under common control with Itron.
20. Compliance with Law. Itron and Customer will at all times perform their respective obligations under this Agreement in compliance in all material respects with all applicable foreign, domestic, state, and local laws and regulations of all applicable foreign and domestic jurisdictions. No export rights are granted under this Agreement, and Customer must not directly or indirectly provide, export or re-export, or otherwise make available (in any form, including visual access), Itron products or technology in violation of any such laws or regulations, without all necessary approvals or licenses. Products and technology may not be provided or made available either directly or indirectly, (i) into Cuba, Iran, North Korea, Sudan, Syria, the Crimea region of Ukraine or any other country subject to United States trade sanctions, or to individuals or entities controlled by such countries or to nationals or residents of such countries (other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions); or (ii) to anyone on any denied, prohibited, or unverified list maintained by the United States Government, including the Office of Foreign Assets Control (OFAC) Specially Designated Nationals (SDN) List. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Notices. All notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by overnight delivery, (iv) the second business day after sending by confirmed facsimile, or (iv), except for legal notices, the first business day after sending by email.
22. Severability. If any provisions of this Agreement or its application to particular circumstances is determined by a court to be invalid or unenforceable, those provisions (or its application to those circumstances) will be deemed stricken and the remainder of the provisions will continue in effect.
23. Force Majeure. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, labor disputes, industry wide shortages of supplies, actions of governmental entities, riots, war, terrorism, fire, epidemics, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the defaulting party shall be extended for a period equal to the period during which such event prevented such party’s performance.
24. No Third-Party Rights. This Agreement is entered into only for the benefit of Customer and Itron, and no other person or entity shall have the right to enforce any of its terms.
25. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
26. Entire Agreement. This Agreement constitutes the entire agreement between Itron and Customer with respect to the subject matter hereof. All prior agreements, representations, warranties, statements, negotiations, understandings, and undertakings are superseded, and Customer represents and acknowledges that it has not relied on any representation or warranty other than those explicitly set forth in this Agreement.
Itron Equipment Warranty Schedule
| Itron Equipment | Itron Equipment Warranty Terms |
| Centron and Sentinel electricity meters | 3 years from shipment |
| Repairs for out-of-warranty electricity meters | Itron shall perform the repairs with reasonable care and in a diligent and competent manner. Itron's sole obligation in connection with repair warranty failures shall be, at its option, to correct or re-perform repairs or refund to Customer the amount paid for the repairs. Customer must report any deficiencies in repair work to Itron in writing within 90 days of shipment to receive the remedies described herein. |
| OpenWay Riva Water Module (including battery) | Full warranty consistent with the warranty terms in the Agreement for the first 10 years from shipment. For warranty claims in years 11 through 15, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 50 percent of its then-current list price for the replacement product. For warranty claims in years 16 through 20, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 25 percent of its then-current list price for the replacement product. The warranty on Itron water endpoints shall be void if the endpoint is used in connection with a third party reading system that is not approved by Itron. |
| 100W and 100W+ series water endpoints (including battery) | Full warranty consistent with the warranty terms in the Agreement for the first 10 years from shipment. For warranty claims in years 11 through 15, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 50 percent of its then-current list price for the replacement product. For warranty claims in years 16 through 20, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 25 percent of its then-current list price for the replacement product. The warranty on Itron water endpoints shall be void if the endpoint is used in connection with a third party reading system that is not approved by Itron. |
| OpenWay Riva Leak Sensor | Full warranty consistent with the warranty terms in the Agreement for the first 5 years from shipment. |
| Leak Sensor (Non-OpenWay Riva) | Full warranty consistent with the warranty terms in the Agreement for the first 10 years from shipment. For warranty claims in years 11 through 15, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 50 percent of its then-current list price for the replacement product. For warranty claims in years 16 through 20, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 25 percent of its then-current list price for the replacement product. |
| Upgraded handhelds or Mobile Collectors | 90 days from shipment. |
| METRIS Meters and I-250 Meters | Itron warrants that eighty five percent (85%) or more of the METRIS Meters and I-250 Meters shipped to Customer during any calendar year will be free from defects in materials and workmanship such that they maintain set point calibration that is within two percent of their original factory set point calibration (open and check) (“Calibration Warranty”). The foregoing Calibration Warranty is valid until the earlier of (i) 15 years from shipment to Customer of the METRIS Meter and I-250 Meter for which warranty coverage is sought, (ii) the measurement of more than one million cubic feet of gas measured by such meter, or (iii) until such meter is replaced by Customer in connection with a periodic meter change-out. Itron's sole obligation and Customer's exclusive remedy in connection with the breach of a warranty provided under this Section shall be for Itron, at its option, to repair any non-conforming METRIS Meters and I-250 Meters, provided that if Itron determines that it is unable to repair a non-conforming METRIS Meter and I-250 Meter, Itron will refund to Customer the depreciated value of such non-conforming METRIS Meter and I-250 Meter. At the request of Itron, Customer will provide evidence of a meter’s service history to verify warranty coverage. |
Effective May 13th 2019 to November 22nd 2022
DownloadTable of Contents
SOFTWARE LICENSE AND SERVICES AGREEMENT
ACCEPTANCE OF TERMS
By clicking “AGREE”, Customer agrees to license the Field Collection System software (“FCS Software”) and to purchase the FCS Software maintenance and support services described in the quote or pricing summary provided by Itron, Inc. or by Itron, Inc.’s distributor (the “Quote”), subject to the terms and conditions of this Agreement.
By clicking “Agree,” Customer also acknowledges that it has read and accepts the terms and conditions of this Agreement in their entirety. Customer should print a copy of this Agreement for its records.
If Customer has chosen to purchase Itron Mobile in addition to licensing FCS Software and purchasing maintenance and support for FCS, that will be reflected in the Quote, the Itron Mobile terms and conditions of this Agreement will also apply. If Customer has not chosen to purchase Itron Mobile, then the Itron Mobile terms and conditions of this Agreement do not apply.
If Customer has also chosen to purchase Itron Equipment or Third-Party Equipment (as defined in Section 4.1), that will be reflected in the Quote and the equipment purchase terms and conditions of this Agreement will apply. If Customer has not chosen to purchase Itron Equipment or Third-Party Equipment, then the equipment terms and conditions of this Agreement do not apply.
If Customer does not click “Agree,” Customer will not be provided the FCS Software, FCS Software maintenance services, Itron Mobile for FCS, or Itron Equipment or Third-Party Equipment.
TERMS & CONDITIONS SPECIFIC TO FCS, MAINTENANCE & SUPPORT, AND ITRON MOBILE
1. FCS Software
1.1 License. Subject to receipt of license fee payment by Customer or by Itron’s distributor where Customer has received a distributor Quote, Itron grants Customer a perpetual, non-exclusive and non-transferable license to use the FCS Software and FCS Software documentation for Customer’s internal business purposes in connection with the number of endpoints or other devices specified in the Quote, subject to the restrictions described below.
1.2 License Restrictions. The FCS Software may only be installed in one production environment and one test environment on Customer premises. Customer is not permitted to copy the FCS Software other than to make one machine readable copy for disaster recovery or archival purposes. Customer is not permitted to (i) modify or create any derivative works from the FCS Software, (ii) include or combine the FCS Software with any software, equipment, or hardware other than as authorized by Itron, (iii) use the FCS Software to provide services to third-parties, (iv) reverse assemble, decompile, reverse engineer the FCS Software or otherwise attempt to derive its source code, (v) export the FCS Software, or (iv) use the FCS Software to create products or services that compete with any of Itron’s products or services. Customer’s breach of these restrictions shall constitute a material breach of this Agreement and shall result in revocation and immediate termination of all rights and licenses granted under this Agreement. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
1.3 Limited Itron FCS Software Warranty. For a period of ninety (90) days from the date of shipment, Itron warrants to Customer that the FCS Software will substantially conform in all material respects with Itron published specifications. As Customer’s sole and exclusive remedy for any breach of this warranty, Itron will during the warranty period set forth in this Section, either repair or replace non-conforming FCS Software to substantially conform to Itron published specifications. After the ninety (90) day period, any Itron FCS Software non-conformities will be addressed under maintenance services terms. This software warranty does not apply to non-conformities due to: (i) modifications not made or approved by Itron in writing; (ii) Customer’s or any third-party’s negligence or intentional acts; (iii) misuse or abuse, including the failure to use or install FCS Software in accordance with the FCS Software documentation, or use of FCS on Equipment not specified by Itron; (iv) incorrect data, or data entry or output by Customer or a third-party; (v) third-party software, hardware or firmware not provided or authorized by Itron in writing; (vi) a force majeure event; or (vii) viruses or security vulnerabilities introduced into the Itron FCS Software or Customer’s systems through no fault of Itron.
1.4 Delivery & Invoicing. Customer will be invoiced for FCS Software upon delivery to Customer, which may be made by making FCS Software available to the distributor or Customer via electronic means or by delivery on physical media.
2. Itron Mobile for FCS
2.1 Tier-Based Annual Subscription Fee. Itron Mobile is offered as an annual subscription service. The subscription fee is charged on fixed numerical range of meters or endpoints (a “Tier”). The annual subscription fee for each Tier are identified in the Quote.
2.2 Commencement of Annual Subscription. The initial Itron Mobile subscription term begins when Itron Mobile is set-up by Itron.
2.3 One-Time Itron Mobile Set-Up Fee. Customer will be charged a one-time set-up fee.
2.4 Subscription Auto-Renewal. Customer’s Itron Mobile subscription will renew automatically for one-year terms, unless either Itron or Customer gives ninety (90) days’ prior written notice of intent not to renew.
2.5 No Termination for Convenience. Neither Itron nor Customer may terminate Itron Mobile during a subscription term.
2.6 Annual Subscription Fee Adjustment. Itron has the right to adjust the subscription fee for each renewal term, without regard to Tier.
2.7 Tier Adjustment. Itron has the right to adjust Customer’s subscription fee at any time if Customer’s use of Itron Mobile exceeds Customer’s Tier. Fees adjusted under this Section 2.5 will normally be invoiced within thirty to sixty days depending on when meter or endpoint provisioning occurs.
2.8 Relationship to Licensed FCS Software and Maintenance & Support. Customer may be required to update or upgrade its licensed FCS Software Tier from time to time in order to ensure full functionality of Itron Mobile. Customer’s subscription and right to use Itron Mobile will terminate if Customer’s FCS Software license is terminated.
2.9 Compatible Mobile Devices. Itron Mobile is designed to work in connection with mobile devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Itron Mobile work with any other mobile devices.
2.10 Customer’s Obligation to Protect Customer Information on Mobile Devices. Customer must take steps to protect Customer information stored on mobile devices. User identification codes, passwords, and any information provided to Customer as part of Itron’s security procedures must be treated by Customer as confidential and must not be disclosed to any third-party. Customer is at all times responsible for its employees and subcontractors’ use of Itron Mobile. Itron has the right to disable any user identification codes or passwords if Customer or its employees and contractors have failed to comply with any of the provisions of this Agreement.
2.11 Internet Connectivity. Itron Mobile requires Internet connectivity, which Customer is solely responsible for obtaining and paying for.
2.12 Disclaimer of Liability. Itron accepts no responsibility for any internet services failure, mobile device failure, or for any loss or damage of any kind caused by such failure.
3. FCS Maintenance & Support.
3.1 Technical Support Services. Upon validation of Customer’s maintenance entitlement, Itron will provide technical support services, which includes system troubleshooting and problem diagnosis, release or system management consulting, and recommendations for fully utilizing FCS. Customer acknowledges and agrees that technical support services are not intended as a substitute for training of Customer personnel. Customer shall designate up to two FCS resources to act as primary service contacts to the Itron technical support services team. Customer primary service contacts must be trained and qualified on the operation and use of FCS via Itron provided or Itron approved FCS training programs.
3.2 Maintenance & Support Year. Maintenance and support services are offered as an annual service, billable in advance and renewable annually. Each annual term is referred to as a “Maintenance & Support Year.”
3.2.1 Commencement of Maintenance & Support Services Fees; Invoicing & Payment. Maintenance and support services for FCS Software commence upon delivery of FCS Software to Customer, and Itron will then invoice Customer for those services. Customer will pay the invoice within thirty (30) days of receipt.
3.3 Annual Adjustment. Maintenance and support services fees are subject to an annual adjustment upon renewal. Additionally, Maintenance fees may be further adjusted upon an increase or decrease in Customer’s endpoint count which exceeds or decreases their current licensed meter / endpoint tier.
3.4 Renewals. Itron will provide Customer with a renewal notice at least one-hundred twenty (120) days prior to the end of the Maintenance & Support Year. Customer must notify Itron within thirty (30) days after receiving Itron’s renewal notice if Customer wishes to change service coverage or does not wish to renew services. Otherwise, maintenance and support services will automatically renew, and Customer will be obligated to pay for the new Maintenance & Support Year.
3.5 Effect of Early Termination by Customer. Itron will not refund prepaid fees if Customer terminates maintenance and support services without cause prior to the expiration of Maintenance & Support Year.
3.6 Restoring Maintenance & Support Services. If Customer discontinues maintenance and support services and thereafter wishes to resume them, Customer must notify Itron in writing of its request and pay Itron’s then-current re-initiation fee.
3.7 Effect of Termination for Cause by Itron. Itron will not refund prepaid maintenance and support services fees if Itron terminates maintenance and support services for cause prior to the expiration of Maintenance & Support Year.
3.8 Client Service Guideline Documents. Itron maintains Client Service Guideline documents to help Customer work effectively with Itron’s Global Support Service team. Itron will instruct Customer on how to obtain those documents. Customer will adhere to the guideline processes to insure prompt and accurate service.
3.9 Itron Support Service Levels. Itron uses a severity level category system to prioritize support services requests, described in the Support Service Levels Table below.
3.10 Customer Obligation to Install Releases. Itron will only provide support services for Itron software that is kept current by Customer. Customer must be operating the most recent system release. Customer must have installed and tested one of the two (2) prior service pack releases. Customer will test and install system releases and service pack releases within twelve (12) months of being made available to Customer.
3.11 Installation Support. Support services for Customer installation of Itron software includes limited remote phone support for Itron certified, production server configurations licensed by Customer, during standard business hours. At Customer’s request, Itron may provide additional installation services at Itron’s then current rates.
3.12 Mandatory Revisions. Customer must install all mandatory revisions. Mandatory revisions will be determined by Itron. Mandatory revisions are intended to address a material software error, a material security breach, or a third-party infringement claim or suit of any kind. Itron disclaims all liability related to or arising out of customer’s failure to install a mandatory revision in a timely fashion.
3.13 Exclusions. Itron shall have no obligation to provide maintenance and support services for, or liability to, Customer for Itron software adversely affected by (i) use of Itron software in combination with software, equipment, or communications networks not authorized by Itron or referenced in the Itron software documentation as compatible, including Software operated on Itron Equipment that has been serviced or repaired by a third party that is not Itron certified; (ii) modification to Itron software by anyone other than Itron, (iii) failure to perform customer responsibilities described describe in these maintenance and support services terms, (iv) the use of a version of Itron software that is not supported by Itron; (v) Customer’s failure to implement a hot fix or mandatory revision provided by Itron; (vi) maintenance and/or support of Itron software other than by Itron; or (vii) viruses introduced through no fault of Itron.
3.14 End of Maintenance & Support. Itron has the right to discontinue maintenance and support services for Itron software. Itron will normally discontinue maintenance and support services at the end of the current Maintenance Year, in which case Itron will give Customer written notice no less than ninety (90) days prior to expiration of the Maintenance Year. In some cases, Itron may decide to discontinue maintenance and support services in a future Maintenance Year, and if the end of support date takes effect prior to the end of that future Maintenance Year, maintenance and support services fees will be pro-rated through the appropriate end of support date.
3.15 Optional Support for Discontinued Itron Software. At Customer’s request, Itron may elect to provide custom support for discontinued Itron software at Itron’s then-current rates, but Itron is under no obligation to do so.
3.16 Itron Support Service Levels Table. Parties shall work cooperatively to address reported errors in accordance with these Priorities and Service levels.
Severity Level 1
| Definition | Critical Business Impact / System Down: An error for which there is no work-around, which causes the software or a critical business function / process of the Itron system to be unavailable. System use and operation cannot continue. An “error” means a failure of the software to substantially comply with the applicable published specifications. |
| Reporting | Severity 1 errors must be reported by phone to initiate the Severity 1 response process. A Severity 1 Service Request (“SR”) initiated by email or web interface are logged as a Severity 3 until reviewed by Itron Technical Support Services and validated as a higher priority. |
| Responses | During after-hour periods, Itron will respond to a critical support voice message within 15 minutes by a return call to Customer, which will validate receipt of the critical support call and begin the SR process. During regular business-hours Itron will begin the SR process during Customer’s initial call. Following the start of the SR process Itron will respond to Customer’s SR within 2 business hours with an investigation response. Following the investigation response, Itron will update Customer at three hour intervals during each day the SR remains unresolved, or as otherwise agreed by Itron and Customer. Customer will respond to an Itron inquiry or request within three hours. |
| Effort Level / Escalation Path | Itron will make diligent efforts on a 24x7 basis*, or as otherwise agreed by Itron and Customer. An SR shall be escalated to Itron’s Global Support Service (“GSS”) management team if a fix is not provided within 1 business day of Itron’s receipt of the Customers call and creation of the SR. A fix is a correction of an error, including a work-around, in order for the software to function in accordance with the applicable published specifications. *24X7 support for Severity Level 1 errors is not currently available for Itron meter products, energy forecasting and load research products, and distribution products. |
Severity Level 2
| Definition | Moderate Business Impact / Degraded Operation: An error other than a Severity Level 1 error, for which there is no work-around, which limits access or use of the software or a business function, causing the system to miss required business interface or deadlines. The system remains available for operation but in a restricted fashion. |
| Reporting | Severity 2 errors must be reported by phone to initiate the Severity 2 response process. SRs initiated by email or web interface are logged as a Severity 3 until reviewed by Itron Technical Support Services and validated as a higher priority. |
| Responses | Customer SR within 1 business day and will update the SR at least every other day. Customer will respond to an Itron inquiry or request within 1 business day. |
| Effort Level / Escalation Path | Itron will make diligent efforts during normal business hours. SRs shall be escalated to Itron’s GSS management team if a fix is not provided within 3 business days of Itron’s receipt of Customer’s call and creation of the SR. |
Severity Level 3
| Definition | Minor Business Impact / Compromised Operation: An error other than a Severity Level 1 or Severity Level 2 error that has an inconvenient use of or access to a software function. (e.g., a feature is not working as documented but a work-around is available and significant business functions are not materially impaired). |
| Reporting | |
| Responses | Itron will respond to Customer SR within 2 business days. |
| Effort Level / Escalation Path | Itron technical representatives will make diligent efforts during normal business hours. |
Severity Level 4
| Definition | No Business Impact / Standard Operation: An error other than a Severity Level 1, Severity Level 2 or Severity Level 3 error. Generally, a cosmetic error or an error which has not degraded Customer’s use of the system |
| Reporting | |
| Responses | Itron will respond to Customer SR within 3 business days, or as otherwise agreed by Itron and Customer. |
| Effort Level / Escalation Path | Itron support representatives will devote commercially reasonable efforts during normal business hours. |
Severity Level 5
| Definition | No Business Impact. Customer SR for an enhancement or new functionality. |
| Reporting | |
| Responses | Not applicable. |
| Effort Level / Escalation Path | The SR will be evaluated as a potential, future product enhancement. If the enhancement or new functionality requires more immediate attention for Customer, Itron will engage Itron’s professional services group to create a customized proposal for Customer, at Itron’s then-current services rates. |
4. Itron Equipment Terms
4.1 Definitions.
“Equipment” means Itron Equipment and Third-Party Equipment.
“Firmware” means the object code version of software embedded in Equipment.
“Itron Equipment” means equipment manufactured by or on behalf of Itron, such as Itron radios, hand-held field collection devices, meters and end points.
“Third-Party Equipment” means equipment that is not manufactured by or on behalf of Itron, such as mobile phones, tablets, and their accessories.
“Itron Equipment Warranty Period” means the Itron Equipment warranty period, commencing upon the actual ship date, which shall be one (1) year, unless otherwise stated in the attached warranty schedule.
4.2 Ordering. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Purchase orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron. All Equipment sales are final. Itron only accepts returns for Itron Equipment under warranty or if Itron has shipped Equipment other than ordered by Customer and such Equipment is unopened and unused,
4.3 Invoicing. Itron will invoice Customer for Equipment upon the date of shipment.
4.4 Shipment, Title & Risk of Loss. Equipment title and risk of loss shall transfer to Customer upon shipment. Customer shall be responsible for all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax relating to importation of Equipment.
4.5 Documentation. Itron will make its standard Documentation for Itron Equipment available via download. Itron will provide download instructions.
4.6 Equipment Firmware. The purchase of Itron Equipment includes a perpetual license under Itron copyrights to use Firmware in the Itron Equipment. The license to any Firmware in Third-Party Equipment purchased by Customer through Itron shall be between Customer and the manufacturer of the Third-Party Equipment.
4.7 Limited Itron Equipment Warranty & Warranty Exclusions. Itron warrants solely to Customer that, during the Itron Equipment Warranty Period, Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications. As Customer’s sole and exclusive remedy, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Itron Equipment Warranty Period in accordance with Itron’s then current RMA policy and procedures, or (ii) provide Customer with a Firmware fix to correct the nonconformity. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Itron Equipment Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer. This Itron Equipment warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with equipment, software, or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; or (c) Customer’s failure to operate Itron Equipment in accordance with its Documentation. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
4.8 Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third-Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer. Customer must coordinate all Third-Party Equipment warranty returns with the Third-Party Equipment manufacturer.
4.9 Equipment Maintenance. Itron provides estimates for post-warranty maintenance and repair services of Customer’s Equipment, as part of the Quote. Initiation, billing, renewal and termination of Equipment maintenance services is managed within the same processes defined in Section 3, FCS Maintenance and Support.
GENERAL TERMS & CONDITIONS OF SALE
5. Purchase Orders. Purchase orders are required to order Itron products and services. Purchase orders are subject to Itron credit approval. Pre-printed terms and any contingencies, additions, or conflicting terms on a purchase order submitted by a customer will be null and void.
6. Fees, Taxes, and Payment. Fees and charges for Itron products and services identified in the Quote are exclusive of transaction taxes and duties. Transaction taxes and duties will be invoiced in the absence of a valid customer tax exemption certificate or direct pay permit. Payment terms are net thirty days from the date of invoice. All payments must be made in US currency. Interest will accrue on late payments at the rate of 1.0% of the outstanding balance per month, or the maximum rate permitted by law until paid. In the event of late payments, Itron may condition future purchases on prepayment or payment in less than thirty (30) days.
7. Confidentiality. All oral or written information exchanged between Itron and Customer in connection with performance under this Agreement is regarded as confidential information. All such information must be treated as confidential and must not be disclosed to any third-parties without obtaining the written consent of the party that provided the information, unless such information: (a) is or will be in the public domain (other than through the receiving party’s unauthorized disclosure); or (b) is under the obligation to be disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities. This section shall survive the termination of this Agreement for any reason.
8. Customer Data. All data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement will be treated by Itron as confidential information. Itron will use safeguards reasonably designed to prevent unauthorized collection, access, disclosure, and use of the data while in Itron’s custody. Customer agrees to cooperate to investigate and remedy any safeguards breach and any related disputes, inquiries, or claims.
9. Indemnification Against Third-Party Claims. Itron will defend and indemnify Customer and Customer’s successors and assigns, officers, directors, employees, representatives, and agents from and against any and all claims, demands, suits, actions, or causes of action of any kind whatsoever for damages, losses, costs and/or expenses (including legal fees and disbursements) by an unaffiliated third-party (each a “Claim”) to the extent resulting from (a) damages to persons or real or tangible property, bodily injury or death arising in connection with this Agreement and caused by Itron’s gross negligence or intentional misconduct, or (b) any allegation that any Itron product or service infringes upon any such third-party’s intellectual property. Itron’s obligation to defend and indemnify does not apply to equipment or software that is not manufactured or developed by or on behalf of Itron, unless the third-party equipment or software has been embedded in Itron products or services.
10. Conditions to Infringement Claim Defense. Itron’s infringement defense obligation is conditioned on Itron’s right to (a) procure the rights for its customer to continue using allegedly infringing products and services, (b) replace them with functionally equivalent alternatives, or (c) modify them to become non-infringing. If those options are not commercially reasonable in Itron’s sole judgment, Itron shall have the right to require its customer to cease using the products and services, and Itron will refund the depreciated value of the affected product and the unused portion of the service.
11. Exclusions to Infringement Claim Defense. Itron shall have no obligation under this Agreement to the extent any claim of infringement results from: (i) use of an Itron product or service, other than as permitted under this Agreement or as intended by Itron, if the infringement would not have occurred but for such use; (ii) use of any Itron product or service in combination with any other product, equipment, software or data, if the infringement would not have occurred but for such combination; (iii) any use of any release of Itron software or any firmware other than the most current release made available to Customer, (iv) any infringement claims resulting from the customer’s refusal to implement, or delay in implementing, modifications recommended by Itron to avoid or mitigate such claim, (v) any modification to an Itron product or services by a person other than Itron or an authorized representative of Itron, or (vi) specific instructions to Itron by its customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of its customer.
12. Right to Defend Infringement Claims. Customer must provide prompt written notice of a claim alleging infringement by Itron products and services. Itron has the right to control the defense, settlement, adjustment or compromise of the claim. Itron’ customer will reasonably assist Itron with the defense. Itron shall not consent to any judgment or settlement of an infringement claim that creates an obligation on its customer without first obtaining the customer’s prior written consent.
13. THIRD-PARTY CLAIM DISCLAIMER. SECTIONS 8 THROUGH 11 CONSTITUTE ITRON’S SOLE AND EXCLUSIVE OBLIGATION WITH RESPECT TO THIRD-PARTY CLAIMS BROUGHT AGAINST ITS CUSTOMER.
14. NO CONSEQUENTIAL DAMAGES. NEITHER PARTY WILL BE LIABLE HEREUNDER FOR CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS OR SAVINGS) FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF THE PARTY WAS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES.
15. FEE LIMITATION. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR DAMAGES IN EXCESS OF ONE-HUNDRED PERCENT (100%) OF THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT APPLICABLE TO PERFORMANCE OR DELIVERABLE TO WHICH THE CLAIM IS RELATED.
16. Reservation of Intellectual Property. Itron reserves all rights, title and interest in and to all of its intellectual property. Customer reserves all rights, title and interest in and to all of its intellectual property.
17. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into its products and services any suggestions, enhancement requests, recommendations or other feedback provided by its customer.
18. Waivers. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision. No waiver granted as to any one provision of this Agreement shall constitute a subsequent waiver of such provision or of any other provision thereof, nor shall it constitute the waiver of any performance other than the actual performance specifically waived.
19. No Assignment. This Agreement is personal to each party and is not permitted to be assigned in whole or in part, except that Itron has the right to assign, by contract or by operation of law, all or part of this Agreement to any entity controlled by or under common control with Itron.
20. Compliance with Law. Itron and Customer will at all times perform their respective obligations under this Agreement in compliance in all material respects with all applicable foreign, domestic, state, and local laws and regulations of all applicable foreign and domestic jurisdictions. No export rights are granted under this Agreement, and Customer must not directly or indirectly provide, export or re-export, or otherwise make available (in any form, including visual access), Itron products or technology in violation of any such laws or regulations, without all necessary approvals or licenses. Products and technology may not be provided or made available either directly or indirectly, (i) into Cuba, Iran, North Korea, Sudan, Syria, the Crimea region of Ukraine or any other country subject to United States trade sanctions, or to individuals or entities controlled by such countries or to nationals or residents of such countries (other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions); or (ii) to anyone on any denied, prohibited, or unverified list maintained by the United States Government, including the Office of Foreign Assets Control (OFAC) Specially Designated Nationals (SDN) List. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Notices. All notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by overnight delivery, (iv) the second business day after sending by confirmed facsimile, or (iv), except for legal notices, the first business day after sending by email.
22. Severability. If any provisions of this Agreement or its application to particular circumstances is determined by a court to be invalid or unenforceable, those provisions (or its application to those circumstances) will be deemed stricken and the remainder of the provisions will continue in effect.
23. Force Majeure. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, labor disputes, industry wide shortages of supplies, actions of governmental entities, riots, war, terrorism, fire, epidemics, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the defaulting party shall be extended for a period equal to the period during which such event prevented such party’s performance.
24. No Third-Party Rights. This Agreement is entered into only for the benefit of Customer and Itron, and no other person or entity shall have the right to enforce any of its terms.
25. Entire Agreement. This Agreement constitutes the entire agreement between Itron and Customer with respect to the subject matter hereof. All prior agreements, representations, warranties, statements, negotiations, understandings, and undertakings are superseded, and Customer represents and acknowledges that it has not relied on any representation or warranty other than those explicitly set forth in this Agreement.
Itron Equipment Warranty Schedule
| Itron Equipment | Itron Equipment Warranty Terms |
| Centron and Sentinel electricity meters | 3 years from shipment |
| Repairs for out-of-warranty electricity meters | Itron shall perform the repairs with reasonable care and in a diligent and competent manner. Itron's sole obligation in connection with repair warranty failures shall be, at its option, to correct or re-perform repairs or refund to Customer the amount paid for the repairs. Customer must report any deficiencies in repair work to Itron in writing within 90 days of shipment to receive the remedies described herein. |
| OpenWay Riva Water Module (including battery) | Full warranty consistent with the warranty terms in the Agreement for the first 10 years from shipment. For warranty claims in years 11 through 15, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 50 percent of its then-current list price for the replacement product. For warranty claims in years 16 through 20, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 25 percent of its then-current list price for the replacement product. The warranty on Itron water endpoints shall be void if the endpoint is used in connection with a third party reading system that is not approved by Itron. |
| 100W and 100W+ series water endpoints (including battery) | Full warranty consistent with the warranty terms in the Agreement for the first 10 years from shipment. For warranty claims in years 11 through 15, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 50 percent of its then-current list price for the replacement product. For warranty claims in years 16 through 20, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 25 percent of its then-current list price for the replacement product. The warranty on Itron water endpoints shall be void if the endpoint is used in connection with a third party reading system that is not approved by Itron. |
| OpenWay Riva Leak Sensor | Full warranty consistent with the warranty terms in the Agreement for the first 5 years from shipment. |
| Leak Sensor (Non-OpenWay Riva) | Full warranty consistent with the warranty terms in the Agreement for the first 10 years from shipment. For warranty claims in years 11 through 15, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 50 percent of its then-current list price for the replacement product. For warranty claims in years 16 through 20, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 25 percent of its then-current list price for the replacement product. |
| Upgraded handhelds or Mobile Collectors | 90 days from shipment. |
| METRIS Meters and I-250 Meters | Itron warrants that eighty five percent (85%) or more of the METRIS Meters and I-250 Meters shipped to Customer during any calendar year will be free from defects in materials and workmanship such that they maintain set point calibration that is within two percent of their original factory set point calibration (open and check) (“Calibration Warranty”). The foregoing Calibration Warranty is valid until the earlier of (i) 15 years from shipment to Customer of the METRIS Meter and I-250 Meter for which warranty coverage is sought, (ii) the measurement of more than one million cubic feet of gas measured by such meter, or (iii) until such meter is replaced by Customer in connection with a periodic meter change-out. Itron's sole obligation and Customer's exclusive remedy in connection with the breach of a warranty provided under this Section shall be for Itron, at its option, to repair any non-conforming METRIS Meters and I-250 Meters, provided that if Itron determines that it is unable to repair a non-conforming METRIS Meter and I-250 Meter, Itron will refund to Customer the depreciated value of such non-conforming METRIS Meter and I-250 Meter. At the request of Itron, Customer will provide evidence of a meter’s service history to verify warranty coverage. |
Effective May 17th 2018 to May 13th 2019
DownloadTable of Contents
SOFTWARE LICENSE AND SERVICES AGREEMENT
ACCEPTANCE OF TERMS
By clicking “AGREE”, Customer agrees to license the Field Collection System software (“FCS Software”) and to purchase the FCS Software maintenance and support services described in the quote provided by Itron, Inc. or by Itron, Inc.’s distributor (the “Quote”), subject to the terms and conditions of this Agreement.
By clicking “Agree,” Customer also acknowledges that it has read and accepts the terms and conditions of this Agreement in their entirety. Customer should print a copy of this Agreement for its records.
If Customer has chosen to purchase Itron Mobile in addition to licensing FCS Software and purchasing that will be reflected in Quote, the Itron Mobile terms and conditions of this Agreement also apply. If Customer has not chosen to purchase Itron Mobile, then the Itron Mobile terms and conditions of this Agreement concerning do not apply.
If Customer does not click “Agree,” Customer will not be provided the FCS Software, FCS Software maintenance services, or Itron Mobile for FCS.
TERMS & CONDITIONS SPECIFIC TO FCS, MAINTENCE & SUPPORT, AND ITRON MOBILE
1. FCS Software.
1.1 License. Itron grants Customer a perpetual, non-exclusive and non-transferable license to use the FCS Software and FCS Software documentation for Customer’s internal business purposes in connection with the number of endpoints or other devices specified in the Quote, subject the restrictions described below.
1.2 License Restrictions. The FCS Software is only permitted to be installed on one production environment and one test environment on Customer premises. Customer is not permitted to copy the FCS Software other than to make one machine readable copy for disaster recovery or archival purposes. Customer is not permitted to (i) modify or create any derivative works from the FCS Software, (ii) include or combine the FCS Software with any software, equipment, or hardware other than as authorized by Itron, (iii) use the FCS Software to provide services to third-parties, (iv) reverse assemble, decompile, reverse engineer the FCS Software or otherwise attempt to derive its source code, (v) export the FCS Software, or (iv) use the FCS Software to create products or services that compete with any of Itron’s products or services. Customer’s breach of these restrictions shall constitute a material breach of this Agreement and shall result in revocation and immediate termination of all rights and licenses granted under this Agreement. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
1.3 Limited Itron FCS Software Warranty. For a period of ninety (90) days from the date of shipment, Itron warrants to Customer that the FCS Software will substantially conform in all material respects with the applicable Itron published specifications. As Customer’s sole and exclusive remedy for any breach of this warranty, Itron will, at its option, during the warranty period set forth in this Section, repair or replace non-conforming FCS Software to substantially conform to the foregoing warranty. After the ninety (90) day period, any Itron FCS Software non-conformities will be addressed under maintenance services terms. This software warranty does not apply to non-conformities due to: (i) modifications not made or approved by Itron in writing; (ii) Customer’s or any third party’s negligence or intentional acts; (iii) misuse or abuse, including the failure to use or install FCS Software in accordance with the FCS Software documentation; (iv) incorrect data, or data entry or output by Customer or a third party; (v) third party software, hardware or firmware not provided or authorized by Itron in writing; (vi) a force majeure event; or (vii) viruses or security vulnerabilities introduced into the Itron FCS Software or Customer’s systems through no fault of Itron.
1.4 Invoicing. Customer will be invoiced for FCS Software upon the date of shipment.
2. Itron Mobile for FCS.
2.1 Annual Subscription Term Commitment. Itron Mobile requires a minimum one-year subscription commitment. The initial Itron Mobile subscription term begins upon completion of Itron Mobile set-up, as validated by Itron. The Itron Mobile subscription term will renew automatically for one-year terms, unless either Itron or Customer gives ninety (90) days’ prior written notice of intent not to renew.
2.2 Itron Mobile Set-Up. Itron Mobile set-up is an activity separate and distinct from FCS software installation. In all cases where a Customer subscribes to Itron Mobile, Itron will perform Itron Mobile set-up, for which Itron will charge a one-time set-up fee.
2.3 Relationship to Licensed FCS Software and Maintenance & Support. In order to ensure full functionality of Itron Mobile, Customer may be required to update or upgrade its licensed FCS Software from time to time. In the event of termination of Customer’s FCS Software license, Customer’s subscription and right to use Itron Mobile will terminate.
2.4 Fee Adjustments. The Itron Mobile subscription fee is subject to annual adjustment. In addition because the Itron Mobile subscription fee is charged on the number of provisioned meters or endpoints in Customer’s system (i.e., the tier limitation), any increase in that number during an Itron Mobile subscription term outside of Customer’s tier limitation will result in additional charges. The additional charges will be invoiced to Customer normally within thirty (30) to sixty (60) days depending on when provisioning occurs.
2.5 Compatible Mobile Devices. Itron Mobile is designed to work in connection with mobile devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Itron Mobile work with any other mobile devices.
2.6 Customer’s Obligation to Protect Customer Information on Mobile Devices. Customer must take steps to protect Customer information stored on mobile devices, including secure access to mobile devices whether purchased through Itron or a third-party. User identification codes, passwords, and any information provided to Customer as part of Itron’s security procedures must be treated as confidential and must not be disclosed to any third party. Customer is at all times responsible for its employees and subcontractors’ use of Itron Mobile. Itron has the right to disable any user identification codes or passwords if, in Itron’s opinion, Customer or its employees and contractors have failed to comply with any of the provisions of this Agreement.
2.7 Internet Connectivity. Itron Mobile requires Internet connectivity. Customer is solely responsible for obtaining and paying for Internet connectivity.
2.8 Disclaimer of Liability. Itron accepts no responsibility for any internet services failure, mobile device failure, or for any loss or damage of any kind caused by such failure.
3. FCS Maintenance & Support.
3.1 Technical Support Services. Itron will provide Technical Support Services to include troubleshooting, problem diagnosis, release or system management, and recommendations for fully utilizing the FCS system. Customer acknowledges and agrees that Technical Support Services are not intended as a substitute for training of Customer personnel and will insure principal FCS resources are trained and qualified on the FCS system via Itron provided or Itron approved FCS training programs.
3.2 Maintenance & Support Year. Maintenance and support services are offered as an annual service, billable in advance and renewable annually. Each annual term is referred to as a “Maintenance & Support Year.”
3.3 Annual Adjustment. Maintenance and support services fees are subject to an annual adjustment upon renewal. Additionally, Maintenance fees may be further adjusted upon an increase in Customer’s endpoint count which exceeds their current licensed meter / endpoint tier.
3.4 Renewals. Itron will provide Customer with a renewal notice at least one-hundred twenty (120) days prior to the end of the Maintenance & Support Year. Customer must notify Itron within thirty (30) days after receiving Itron’s renewal notice if Customer wishes to change service coverage or does not wish to renew services. Otherwise, maintenance and support services will automatically renew, and Customer will be obligated to pay for the new Maintenance & Support Year.
35 Effect of Early Termination by Customer. Itron will not refund prepaid fees if Customer terminates maintenance and support services without cause prior to the expiration of Maintenance & Support Year.
3.6 Restoring Maintenance & Support Services. If Customer discontinues maintenance and support services and thereafter wishes to resume them, Customer must notify Itron in writing of its request and pay Itron’s then-current re-initiation fee.
3.7 Effect of Termination for Cause by Itron. Itron will not refund prepaid maintenance and support services fees if Itron terminates maintenance and support services for cause prior to the expiration of Maintenance & Support Year.
3.8 Working Level Documents. Itron maintains working level documents to help Customer work effectively with Itron’s Global Support Service team. Itron will instruct Customer on how to obtain those documents. Customer will adhere to Working Level Document processes to insure prompt and accurate service.
3.9 Itron Support Priorities & Service Levels. Itron uses a five severity level category system to prioritize support services requests, described in the Support Priorities & Service Levels Table below.
3.10 Customer Obligation to Install Releases. Itron will only provide support services for Itron software that is kept current by Customer. Customer must be operating the most recent system release. Customer must have installed and tested one of the two (2) prior service pack releases. Customer will test and install system releases and service pack releases within twelve (12) months of being made available to Customer.
3.11 Installation Support. Support services for installation of Itron software by Customer include limited remote phone support for Itron certified, production server configurations licensed by Customer, during standard business hours. At Customer’s request, Itron may provide additional installation services under Itron Enhanced Maintenance Service program.
3.12 Mandatory Revisions. Customer must install all mandatory revisions. Mandatory revisions will be determined by Itron. Mandatory revisions are intended to address a material software error, a material security breach, or a third party infringement claim or suit of any kind. Itron disclaims all liability related to or arising out of customer’s failure to install a mandatory revision in a timely fashion.
3.13 Exclusions. Itron shall have no obligation to provide maintenance and support services for, or liability to, Customer for Itron software adversely affected by (i) use of Itron software in combination with software, equipment, or communications networks not authorized by Itron or referenced in the Itron software documentation as compatible; (ii) modification to Itron software by anyone other than Itron, (iii) failure to perform customer responsibilities described describe in these maintenance and support services terms, (iv) the use of a version of Itron software that is not supported by Itron; (v) Customer’s failure to implement a hot fix or mandatory revision provided by Itron; (vi) maintenance and/or support of Itron software other than by Itron; or (vii) viruses introduced through no fault of Itron.
3.14 End of Maintenance & Support. Itron has the right to discontinue maintenance and support services for Itron software. Itron will normally discontinue maintenance and support services at the end of the current Maintenance Year, in which case Itron will give Customer written notice no less than ninety (90) days prior to expiration of the Maintenance Year. In some cases, Itron may decide to discontinue maintenance and support services in a future Maintenance Year, and if the end of support date takes effect prior to the end of that future Maintenance Year, maintenance and support services fees will be pro-rated through the appropriate end of support date.
3.15 Optional Support for Discontinued Itron Software. At Customer’s request, Itron may elect to provide custom support for discontinued Itron software under a written and negotiated Enhanced Maintenance Services statement of work, but Itron is under no obligation to do so.
3.16 Itron Support Priorities & Service Levels Table. Parties shall work cooperatively to address reported errors in accordance with these Priorities and Service levels.
Severity Level 1
Definition | Critical Business Impact / System Down: An error for which there is no work-around, which causes the software or a critical business function / process of the Itron system to be unavailable. System use and operation cannot continue. An “error” means a failure of the software to substantially comply with the applicable published specifications. |
Reporting | Severity 1 errors must be reported by phone to initiate the Severity 1 response process. A Severity 1 Service Request (“SR”) initiated by email or web interface are logged as a Severity 3 until reviewed by Itron Technical Support Services and validated as a higher priority. |
Responses | During after-hour periods, Itron will respond to a critical support voice message within 15 minutes by a return call to Customer, which will validate receipt of the critical support call and begin the SR process. During regular business-hours Itron will begin the SR process during Customer’s initial call. Following the start of the SR process Itron will respond to Customer’s SR within 2 business hours with an investigation response. Following the investigation response, Itron will update Customer at three hour intervals during each day the SR remains unresolved, or as otherwise agreed by Itron and Customer. Customer will respond to an Itron inquiry or request within three hours. |
Effort Level / Escalation Path | Itron will make diligent efforts on a 24x7 basis*, or as otherwise agreed by Itron and Customer. An SR shall be escalated to Itron’s Global Support Service (“GSS”) management team if a fix is not provided within 1 business day of Itron’s receipt of the Customers call and creation of the SR. A fix is a correction of an error, including a work-around, in order for the software to function in accordance with the applicable published specifications. *24X7 support for Severity Level 1 errors is not currently available for Itron meter products, energy forecasting and load research products, and distribution products. |
Severity Level 2
Definition | Moderate Business Impact / Degraded Operation: An error other than a Severity Level 1 error, for which there is no work-around, which limits access or use of the software or a business function, causing the system to miss required business interface or deadlines. The system remains available for operation but in a restricted fashion. |
Reporting | Severity 2 errors must be reported by phone to initiate the Severity 2 response process. SRs initiated by email or web interface are logged as a Severity 3 until reviewed by Itron Technical Support Services and validated as a higher priority. |
Responses | Customer SR within 1 business day and will update the SR at least every other day. Customer will respond to an Itron inquiry or request within 1 business day. |
Effort Level / Escalation Path | Itron will make diligent efforts during normal business hours. SRs shall be escalated to Itron’s GSS management team if a fix is not provided within 3 business days of Itron’s receipt of Customer’s call and creation of the SR. |
Severity Level 3
Definition | Minor Business Impact / Compromised Operation: An error other than a Severity Level 1 or Severity Level 2 error that has an inconvenient use of or access to a software function. (e.g., a feature is not working as documented but a work-around is available and significant business functions are not materially impaired). |
Reporting | |
Responses | Itron will respond to Customer SR within 2 business days. |
Effort Level / Escalation Path | Itron technical representatives will make diligent efforts during normal business hours. |
Severity Level 4
Definition | No Business Impact / Standard Operation: An error other than a Severity Level 1, Severity Level 2 or Severity Level 3 error. Generally a cosmetic error or an error which has not degraded Customer’s use of the system |
Reporting | |
Responses | Itron will respond to Customer SR within 3 business days, or as otherwise agreed by Itron and Customer. |
Effort Level / Escalation Path | Itron support representatives will devote commercially reasonable efforts during normal business hours. |
Severity Level 5
Definition | No Business Impact. Customer SR for an enhancement or new functionality. |
Reporting | |
Responses | Not applicable. |
Effort Level / Escalation Path | The SR will be evaluated as a potential, future product enhancement. If the enhancement or new functionality requires more immediate attention for Customer, Itron will engage Itron’s professional services group to create a customized proposal for Customer, at Itron’s then-current services rates. |
GENERAL TERMS & CONDITIONS OF SALE
4. Purchase Orders. Purchase orders are required to order Itron products and services. Purchase orders are subject to Itron credit approval. Pre-printed terms and any contingencies, additions, or conflicting terms on a purchase order submitted by a customer will be null and void.
5. Fees, Taxes, and Payment. Fees and charges for Itron products and services identified in the Quote are exclusive of transaction taxes and duties. Transaction taxes and duties will be invoiced in the absence of a valid customer tax exemption certificate or direct pay permit. Payment terms are net thirty days from the date of invoice. All payments must be made in US currency. Interest will accrue on late payments at the rate of 1.0% of the outstanding balance per month, or the maximum rate permitted by law until paid. In the event of late payments, Itron may condition future purchases on prepayment or payment in less than thirty (30) days.
6. Confidentiality. All oral or written information exchanged between Itron and Customer in connection with performance under this Agreement is regarded as confidential information. All such information must be treated as confidential and must not be disclosed to any third parties without obtaining the written consent of the party that provided the information, unless such information: (a) is or will be in the public domain (other than through the receiving party’s unauthorized disclosure); or (b) is under the obligation to be disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities. This section shall survive the termination of this Agreement for any reason.
7. Customer Data. All data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement will be treated by Itron as confidential information. Itron will use safeguards reasonably designed to prevent unauthorized collection, access, disclosure, and use of the data while in Itron’s custody. Customer agrees to cooperate to investigate and remedy any safeguards breach and any related disputes, inquiries, or claims.
8 Indemnification Against Third Party Claims. Itron will defend and indemnify Customer and Customer’s successors and assigns, officers, directors, employees, representatives, and agents from and against any and all claims, demands, suits, actions, or causes of action of any kind whatsoever for damages, losses, costs and/or expenses (including legal fees and disbursements) by an unaffiliated third party (each a “Claim”) to the extent resulting from (a) damages to persons or real or tangible property, bodily injury or death arising in connection with this Agreement and caused by Itron’s gross negligence or intentional misconduct, or (b) any allegation that any Itron product or service infringes upon any such third party’s intellectual property. Itron’s obligation to defend and indemnify does not apply to equipment or software that is not manufactured or developed by or on behalf of Itron, unless the third party equipment or software has been embedded in Itron products or services.
9. Conditions to Infringement Claim Defense. Itron’s infringement defense obligation is conditioned on Itron’s right to (a) procure the rights for its customer to continue using allegedly infringing products and services, (b) replace them with functionally equivalent alternatives, or (c) modify them to become non-infringing. If those options are not commercially reasonable in Itron’s sole judgment, Itron shall have the right to require its customer to cease using the products and services, and Itron will refund the depreciated value of the affected product and the unused portion of the service.
10. Exclusions to Infringement Claim Defense. Itron shall have no obligation under this Agreement to the extent any claim of infringement results from: (i) use of an Itron product or service, other than as permitted under this Agreement or as intended by Itron, if the infringement would not have occurred but for such use; (ii) use of any Itron product or service in combination with any other product, equipment, software or data, if the infringement would not have occurred but for such combination; (iii) any use of any release of Itron software or any firmware other than the most current release made available to Customer, (iv) any infringement claims resulting from the customer’s refusal to implement, or delay in implementing, modifications recommended by Itron to avoid or mitigate such claim, (v) any modification to an Itron product or services by a person other than Itron or an authorized representative of Itron, or (vi) specific instructions to Itron by its customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of its customer.
11. Right to Defend Infringement Claims. Customer must provide prompt written notice of a claim alleging infringement by Itron products and services. Itron has the right to control the defense, settlement, adjustment or compromise of the claim. Itron’ customer will reasonably assist Itron with the defense. Itron shall not consent to any judgment or settlement of an infringement claim that creates an obligation on its customer without first obtaining the customer’s prior written consent.
12. THIRD PARTY CLAIM DISCLAIMER. SECTIONS 8 THROUGH 11 CONSTITUTE ITRON’S SOLE AND EXCLUSIVE OBLIGATION WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST ITS CUSTOMER.
13. NO CONSEQUENTIAL DAMAGES. NEITHER PARTY WILL BE LIABLE HEREUNDER FOR CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS OR SAVINGS) FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF THE PARTY WAS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES.
14. FEE LIMITATION. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR DAMAGES IN EXCESS OF ONE-HUNDRED PERCENT (100%) OF THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT APPLICABLE TO PERFORMANCE OR DELIVERABLE TO WHICH THE CLAIM IS RELATED.
15. Reservation of Intellectual Property. Itron reserves all rights, title and interest in and to all of its intellectual property. Customer reserves all rights, title and interest in and to all of its intellectual property.
16. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into its products and services any suggestions, enhancement requests, recommendations or other feedback provided by its customer.
17. Waivers. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision. No waiver granted as to any one provision of this Agreement shall constitute a subsequent waiver of such provision or of any other provision thereof, nor shall it constitute the waiver of any performance other than the actual performance specifically waived.
18. No Assignment. This Agreement is personal to each party and is not permitted to be assigned in whole or in part, except that Itron has the right to assign, by contract or by operation of law, all or part of this Agreement to any entity controlled by or under common control with Itron.
19. Section Numbers. Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular Section of this Agreement will be deemed to include reference to any and all subsections thereof.
20. Compliance with Law. Itron and Customer will at all times perform their respective obligations under this Agreement in compliance in all material respects with all applicable foreign, domestic, state, and local laws and regulations of all applicable foreign and domestic jurisdictions.
21. Notices. All notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by overnight delivery, (iv) the second business day after sending by confirmed facsimile, or (iv), except for legal notices, the first business day after sending by email.
22. Severability. If any provisions of this Agreement or its application to particular circumstances is determined by a court to be invalid or unenforceable, those provisions (or its application to those circumstances) will be deemed stricken and the remainder of the provisions will continue in effect.
23. Force Majeure. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, labor disputes, industry wide shortages of supplies, actions of governmental entities, riots, war, terrorism, fire, epidemics, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the defaulting party shall be extended for a period equal to the period during which such event prevented such party’s performance.
24. No Third Party Rights. This Agreement is entered into only for the benefit of Customer and Itron, and no other person or entity shall have the right to enforce any of its terms.
25. Entire Agreement. This Agreement constitutes the entire agreement between Itron and Customer with respect to the subject matter hereof. All prior agreements, representations, warranties, statements, negotiations, understandings, and undertakings are superseded, and Customer represents and acknowledges that it has not relied on any representation or warranty other than those explicitly set forth in this Agreement.
MV-RS Extended Support Agreement
Effective October 8th 2024
DownloadTable of Contents
ITRON MV-RS EXTENDED SUPPORT AGREEMENT
ACCEPTANCE OF TERMS
By clicking “AGREE”, Customer understands and agrees that:
- it has read and accepts the terms and conditions of this MV-RS Extended Support Agreement in its entirety. (Customer should print a hard copy of this Agreement for it records), and,
- it will meet the Customer conditions of this Agreement, including their providing a valid PO for the quoted MVRS Extended Maintenance Fees, and providing a valid Purchase Order for Itron’s FCS SW or Temetra SaaS Subscription, and,
- it will receive No MV-RS Extended Support if it does not click “AGREE” to this special offer.
TERMS and CONDITIONS SPECIFIC TO MV-RS EXTENDED SUPPORT
1. SCOPE
Itron agrees to provide to Customer limited MV-RS Extended Support (“MV-RS Support”) under the terms and conditions set forth herein for the MV-RS Extended Support Term defined below.
2. MV-RS EXTENDED SUPPORT TERM
The term of this Agreement begins on Customer’s date of acknowledgement to “AGREE” to the terms of this Agreement and shall continue through December 31, 2022 (the “MV-RS Extended Support Term”), provided that Customer meets the MV-RS Extended Support Conditions set forth in Section 4. [Note: If Customer fails to meet the MV-RS Extended Support Conditions, this Agreement shall automatically terminate and Itron shall have no obligation to provide MV-RS Support no obligation to refund any MV-RS Support fees paid by Customer.)
There shall be no renewals of this Agreement. For avoidance of doubt, no MV-RS Extended Support will be available after December 31, 2022.
3. MV-RS EXTENDED SUPPORT CONDITIONS
To fully execute this Agreement Customer will complete the following MV-RS Support Conditions on or before May 31, 2022:
- Customer “AGREES” to Terms: Customer will follow the Itron provided link to the agreement site and acknowledge they “AGREE” to the terms of this Agreement.
- New Product Order – Customer will submit a request and valid purchase order to customer.orders@itron.com for Itron’s FCS Software System or Temetra SaaS Subscription, which Itron will promptly validate and accept.
- Agreement and Fees – Customer will submit to Itron a valid Purchase Order for the MV-RS Extended Support fees quoted to Customer, by Itron.
4. LIMITED MV-RS EXTENDED SUPPORT
MV-RS Support will be provided for MV-RS PC/Server Software and for MV-RS Software running on handheld devices, to Customer, under these limited provisions :
- Best effort technical support for only Severity Level 1 issues, via work around remediation
- No Software Engineering Support
- No Onsite Support
- No software releases, no bug fixes, no enhancements
- No support for Customer’s additions or changes to system configuration, third party components, system operations, or any other aspects of the system that could introduce problems.
5. MV-RS SUPPORT FEES
The fee for any 2022 term of MV-RS Support equates to the sum of Customer’s last annual MV-RS maintenance fee, including an applicable annual adjustment, plus a 25% adder for the extension of MV-RS Support.
Customer will remit payment for the full MV-RS Support fee under NET30 terms. Quarterly or pro-rated payment terms are not available.
6. MV-RS SUPPORT PRECEDENCE
Except as set forth in this AGREEMENT, the MV-RS software support terms in Customer’s previous MV-RS maintenance agreement shall apply to this MV-RS Extended Support.
Effective March 11th 2022 to October 8th 2024
DownloadTable of Contents
ITRON MV-RS EXTENDED SUPPORT AGREEMENT
ACCEPTANCE OF TERMS
By clicking “AGREE”, Customer understands and agrees that:
- it has read and accepts the terms and conditions of this MV-RS Extended Support Agreement in its entirety. (Customer should print a hard copy of this Agreement for it records), and,
- it will meet the Customer conditions of this Agreement, including their providing a valid PO for the quoted MVRS Extended Maintenance Fees, and providing a valid Purchase Order for Itron’s FCS SW or Temetra SaaS Subscription, and,
- it will receive No MV-RS Extended Support if it does not click “AGREE” to this special offer.
TERMS and CONDITIONS SPECIFIC TO MV-RS EXTENDED SUPPORT
1. SCOPE
Itron agrees to provide to Customer limited MV-RS Extended Support (“MV-RS Support”) under the terms and conditions set forth herein for the MV-RS Extended Support Term defined below.
2. MV-RS EXTENDED SUPPORT TERM
The term of this Agreement begins on Customer’s date of acknowledgement to “AGREE” to the terms of this Agreement and shall continue through December 31, 2022 (the “MV-RS Extended Support Term”), provided that Customer meets the MV-RS Extended Support Conditions set forth in Section 4. [Note: If Customer fails to meet the MV-RS Extended Support Conditions, this Agreement shall automatically terminate and Itron shall have no obligation to provide MV-RS Support no obligation to refund any MV-RS Support fees paid by Customer.)
There shall be no renewals of this Agreement. For avoidance of doubt, no MV-RS Extended Support will be available after December 31, 2022.
3. MV-RS EXTENDED SUPPORT CONDITIONS
To fully execute this Agreement Customer will complete the following MV-RS Support Conditions on or before May 31, 2022:
- Customer “AGREES” to Terms: Customer will follow the Itron provided link to the agreement site and acknowledge they “AGREE” to the terms of this Agreement.
- New Product Order – Customer will submit a request and valid purchase order to customer.orders@itron.com for Itron’s FCS Software System or Temetra SaaS Subscription, which Itron will promptly validate and accept.
- Agreement and Fees – Customer will submit to Itron a valid Purchase Order for the MV-RS Extended Support fees quoted to Customer, by Itron.
4. LIMITED MV-RS EXTENDED SUPPORT
MV-RS Support will be provided for MV-RS PC/Server Software and for MV-RS Software running on handheld devices, to Customer, under these limited provisions :
- Best effort technical support for only Severity Level 1 issues, via work around remediation
- No Software Engineering Support
- No Onsite Support
- No software releases, no bug fixes, no enhancements
- No support for Customer’s additions or changes to system configuration, third party components, system operations, or any other aspects of the system that could introduce problems.
5. MV-RS SUPPORT FEES
The fee for any 2022 term of MV-RS Support equates to the sum of Customer’s last annual MV-RS maintenance fee, including an applicable annual adjustment, plus a 25% adder for the extension of MV-RS Support.
Customer will remit payment for the full MV-RS Support fee under NET30 terms. Quarterly or pro-rated payment terms are not available.
6. MV-RS SUPPORT PRECEDENCE
Except as set forth in this AGREEMENT, the MV-RS software support terms in Customer’s previous MV-RS maintenance agreement shall apply to this MV-RS Extended Support.
Effective February 17th 2022 to March 11th 2022
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ITRON MV-RS EXTENDED SUPPORT AGREEMENT
ACCEPTANCE OF TERMS
By clicking “AGREE”, Customer understands and agrees that:
- it has read and accepts the terms and conditions of this MV-RS Extended Support Agreement in its entirety. (Customer should print a hard copy of this Agreement for it records), and,
- it will meet the Customer conditions of this Agreement, including their providing a valid PO for the quoted MVRS Extended Maintenance Fees, and providing a valid Purchase Order for Itron’s FCS SW or Temetra SaaS Subscription, and,
- it will receive No MV-RS Extended Support if it does not click “AGREE” to this special offer.
TERMS and CONDITIONS SPECIFIC TO MV-RS EXTENDED SUPPORT
1. SCOPE
Itron agrees to provide to Customer limited MV-RS Extended Support (“MV-RS Support”) under the terms and conditions set forth herein for the MV-RS Extended Support Term defined below.
2. MV-RS EXTENDED SUPPORT TERM
The term of this Agreement begins on Customer’s date of acknowledgement to “AGREE” to the terms of this Agreement and shall continue through December 31, 2022 (the “MV-RS Extended Support Term”), provided that Customer meets the MV-RS Extended Support Conditions set forth in Section 4. [Note: If Customer fails to meet the MV-RS Extended Support Conditions, this Agreement shall automatically terminate and Itron shall have no obligation to provide MV-RS Support no obligation to refund any MV-RS Support fees paid by Customer.)
There shall be no renewals of this Agreement. For avoidance of doubt, no MV-RS Extended Support will be available after December 31, 2022.
3. MV-RS EXTENDED SUPPORT CONDITIONS
To fully execute this Agreement Customer will complete the following MV-RS Support Conditions on or before May 31, 2022:
- Customer “AGREES” to Terms: Customer will follow the Itron provided link to the agreement site and acknowledge they “AGREE” to the terms of this Agreement.
- New Product Order – Customer will submit a request and valid purchase order to customer.orders@itron.com for Itron’s FCS Software System or Temetra SaaS Subscription, which Itron will promptly validate and accept.
- Agreement and Fees – Customer will submit to Itron a valid Purchase Order for the MV-RS Extended Support fees quoted to Customer, by Itron.
4. LIMITED MV-RS EXTENDED SUPPORT
MV-RS Support will be provided for MV-RS PC/Server Software and for MV-RS Software running on handheld devices, to Customer, under these limited provisions :
- Best effort technical support for only Severity Level 1 issues, via work around remediation
- No Software Engineering Support
- No Onsite Support
- No software releases, no bug fixes, no enhancements
- No support for Customer’s additions or changes to system configuration, third party components, system operations, or any other aspects of the system that could introduce problems.
5. MV-RS SUPPORT FEES
The fee for any 2022 term of MV-RS Support equates to the sum of Customer’s last annual MV-RS maintenance fee, including an applicable annual adjustment, plus a 25% adder for the extension of MV-RS Support.
Customer will remit payment for the full MV-RS Support fee under NET30 terms. Quarterly or pro-rated payment terms are not available.
6. MV-RS SUPPORT PRECEDENCE
Except as set forth in this AGREEMENT, the MV-RS software support terms in Customer’s previous MV-RS maintenance agreement shall apply to this MV-RS Extended Support.
North American Temetra Solutions and Itron Security Manager Agreement
Effective October 8th 2024
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NORTH AMERICAN
TEMETRA SOLUTION AGREEMENT
THIS NORTH AMERICAN TEMETRA SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof, unless a different period is specified in a Quote.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Software | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Covered Third Party Equipment | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Party means Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering(s) identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. Initial Subscription Fees shall be prorated based on the number of months remaining in the current Billing Cycle following the Service Offering Commencement Date. Itron may discontinue a Service Offering by providing Customer with written notice of discontinuance no less than 180 days prior to the commencement of a Billing Cycle. Otherwise, Itron will provide Customer with a renewal notice for the Service Offering at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue a Service Offering by providing Itron with written notice of non-renewal no less than 90 days prior to the commencement of a Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each Billing Cycle, Itron will provide Customer with an invoice for Subscription Fees payable by Customer for the forthcoming Billing Cycle.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense. For the avoidance of doubt, Customer is responsible for providing WAN connectivity.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to store, install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. MaintenanceServices
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION VIA CUSTOMER OR THIRD PARTY WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DISCONTINUANCE, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer, or (vii) use of any Customer or third-party wireless data services. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
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Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
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Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
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Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective June 19th 2024 to October 8th 2024
DownloadTable of Contents
NORTH AMERICAN
TEMETRA SOLUTION AGREEMENT
THIS NORTH AMERICAN TEMETRA SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof, unless a different period is specified in a Quote.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Software | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Covered Third Party Equipment | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Party means Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering(s) identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. Initial Subscription Fees shall be prorated based on the number of months remaining in the current Billing Cycle following the Service Offering Commencement Date. Itron may discontinue a Service Offering by providing Customer with written notice of discontinuance no less than 180 days prior to the commencement of a Billing Cycle. Otherwise, Itron will provide Customer with a renewal notice for the Service Offering at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue a Service Offering by providing Itron with written notice of non-renewal no less than 90 days prior to the commencement of a Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each Billing Cycle, Itron will provide Customer with an invoice for Subscription Fees payable by Customer for the forthcoming Billing Cycle.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense. For the avoidance of doubt, Customer is responsible for providing WAN connectivity.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to store, install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. MaintenanceServices
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION VIA CUSTOMER OR THIRD PARTY WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DISCONTINUANCE, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer, or (vii) use of any Customer or third-party wireless data services. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
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Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
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Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective April 17th 2024 to June 19th 2024
DownloadTable of Contents
NORTH AMERICAN
TEMETRA SOLUTION AGREEMENT
THIS NORTH AMERICAN TEMETRA SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof, unless a different period is specified in a Quote.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Software | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Covered Third Party Equipment | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Party means Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering(s) identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. Initial Subscription Fees shall be prorated based on the number of months remaining in the current Billing Cycle following the Service Offering Commencement Date. Itron may discontinue a Service Offering by providing Customer with written notice of discontinuance no less than 180 days prior to the commencement of a Billing Cycle. Otherwise, Itron will provide Customer with a renewal notice for the Service Offering at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue a Service Offering by providing Itron with written notice of non-renewal no less than 90 days prior to the commencement of a Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each Billing Cycle, Itron will provide Customer with an invoice for Subscription Fees payable by Customer for the forthcoming Billing Cycle.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense. For the avoidance of doubt, Customer is responsible for providing WAN connectivity.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to store, install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. MaintenanceServices
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION VIA CUSTOMER OR THIRD PARTY WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DISCONTINUANCE, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer, or (vii) use of any Customer or third-party wireless data services. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
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Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
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Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
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Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective November 1st 2023 to April 17th 2024
DownloadTable of Contents
NORTH AMERICAN
TEMETRA SOLUTION AGREEMENT
THIS NORTH AMERICAN TEMETRA SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof, unless a different period is specified in a Quote.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Software | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Covered Third Party Equipment | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Party means Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering(s) identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. Initial Subscription Fees shall be prorated based on the number of months remaining in the current Billing Cycle following the Service Offering Commencement Date. Itron may discontinue a Service Offering by providing Customer with written notice of discontinuance no less than 180 days prior to the commencement of a Billing Cycle. Otherwise, Itron will provide Customer with a renewal notice for the Service Offering at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue a Service Offering by providing Itron with written notice of non-renewal no less than 90 days prior to the commencement of a Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each Billing Cycle, Itron will provide Customer with an invoice for Subscription Fees payable by Customer for the forthcoming Billing Cycle.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense. For the avoidance of doubt, Customer is responsible for providing WAN connectivity.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. MaintenanceServices
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION VIA CUSTOMER OR THIRD PARTY WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DISCONTINUANCE, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer, or (vii) use of any Customer or third-party wireless data services. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
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Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
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Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
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Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective September 21st 2023 to November 1st 2023
DownloadTable of Contents
NORTH AMERICAN
TEMETRA SOLUTION AGREEMENT
THIS NORTH AMERICAN TEMETRA SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof, unless a different period is specified in a Quote.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Software | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Covered Third Party Equipment | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Party means Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering(s) identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. Initial Subscription Fees shall be prorated based on the number of months remaining in the current Billing Cycle following the Service Offering Commencement Date. Itron may discontinue a Service Offering by providing Customer with written notice of discontinuance no less than 180 days prior to the commencement of a Billing Cycle. Otherwise, Itron will provide Customer with a renewal notice for the Service Offering at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue a Service Offering by providing Itron with written notice of non-renewal no less than 90 days prior to the commencement of a Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each Billing Cycle, Itron will provide Customer with an invoice for Subscription Fees payable by Customer for the forthcoming Billing Cycle.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense. For the avoidance of doubt, Customer is responsible for providing WAN connectivity.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. MaintenanceServices
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION VIA CUSTOMER OR THIRD PARTY WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer, or (vii) use of any Customer or third-party wireless data services. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
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Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
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Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
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Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective July 19th 2023 to September 21st 2023
DownloadTable of Contents
NORTH AMERICAN
TEMETRA SOLUTION AGREEMENT
THIS NORTH AMERICAN TEMETRA SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof, unless a different period is specified in a Quote.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Software | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Covered Third Party Equipment | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Party means Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. Initial Subscription Fees shall be prorated based on the number of months remaining in the current Billing Cycle following the Service Offering Commencement Date. Itron may discontinue a Service Offering by providing Customer with written notice of discontinuance no less than 180 days prior to the commencement of a Billing Cycle. Otherwise, Itron will provide Customer with a renewal notice for the Service Offering at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue a Service Offering by providing Itron with written notice of non-renewal no less than 90 days prior to the commencement of a Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each Billing Cycle, Itron will provide Customer with an invoice for Subscription Fees payable by Customer for the forthcoming Billing Cycle.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense. For the avoidance of doubt, Customer is responsible for providing WAN connectivity.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. MaintenanceServices
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION VIA CUSTOMER OR THIRD PARTY WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer, or (vii) use of any Customer or third-party wireless data services. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective July 17th 2023 to July 19th 2023
DownloadTable of Contents
NORTH AMERICAN
TEMETRA SOLUTION AGREEMENT
THIS NORTH AMERICAN TEMETRA SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof, unless a different period is specified in a Quote.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Software | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Covered Third Party Equipment | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Party means Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. Initial Subscription Fees shall be prorated based on the number of months remaining in the current Billing Cycle following the Service Offering Commencement Date. Itron may discontinue a Service Offering by providing Customer with written notice of discontinuance no less than 180 days prior to the commencement of a Billing Cycle. Otherwise, Itron will provide Customer with a renewal notice for the Service Offering at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue a Service Offering by providing Itron with written notice of non-renewal no less than 90 days prior to the commencement of a Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each Billing Cycle, Itron will provide Customer with an invoice for Subscription Fees payable by Customer for the forthcoming Billing Cycle.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. MaintenanceServices
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION VIA CUSTOMER OR THIRD PARTY WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer, or (vii) use of any Customer or third-party wireless data services. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective June 5th 2023 to July 17th 2023
DownloadTable of Contents
NORTH AMERICAN
TEMETRA SOLUTION AGREEMENT
THIS NORTH AMERICAN TEMETRA SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof, unless a different period is specified in a Quote.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Software | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Covered Third Party Equipment | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Party means Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. Initial Subscription Fees shall be prorated based on the number of months remaining in the current Billing Cycle following the Service Offering Commencement Date. Itron may discontinue a Service Offering by providing Customer with written notice of discontinuance no less than 180 days prior to the commencement of a Billing Cycle. Otherwise, Itron will provide Customer with a renewal notice for the Service Offering at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue a Service Offering by providing Itron with written notice of non-renewal no less than 90 days prior to the commencement of a Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each Billing Cycle, Itron will provide Customer with an invoice for Subscription Fees payable by Customer for the forthcoming Billing Cycle.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. MaintenanceServices
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective May 26th 2023 to June 5th 2023
DownloadTable of Contents
NORTH AMERICAN
TEMETRA SOLUTION AGREEMENT
THIS NORTH AMERICAN TEMETRA SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof, unless a different period is specified in a Quote.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Software | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Covered Third Party Equipment | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Party means Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. Initial Subscription Fees shall be prorated based on the number of months remaining in the current Billing Cycle following the Service Offering Commencement Date. Itron may discontinue a Service Offering by providing Customer with written notice of discontinuance no less than 180 days prior to the commencement of a Billing Cycle. Otherwise, Itron will provide Customer with a renewal notice for the Service Offering at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue a Service Offering by providing Itron with written notice of non-renewal no less than 90 days prior to the commencement of a Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each Billing Cycle, Itron will provide Customer with an invoice for Subscription Fees payable by Customer for the forthcoming Billing Cycle.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. MaintenanceServices
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective May 20th 2023 to May 26th 2023
DownloadTable of Contents
NORTH AMERICAN
TEMETRA SOLUTION AGREEMENT
THIS NORTH AMERICAN TEMETRA SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Effective Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Software | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Covered Third Party Equipment | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. Initial Subscription Fees shall be prorated based on the number of months remaining in the current Billing Cycle following the Service Offering Commencement Date. Itron may discontinue a Service Offering by providing Customer with written notice of discontinuance no less than 180 days prior to the commencement of a Billing Cycle. Otherwise, Itron will provide Customer with a renewal notice for the Service Offering at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue a Service Offering by providing Itron with written notice of non-renewal no less than 90 days prior to the commencement of a Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each Billing Cycle, Itron will provide Customer with an invoice for Subscription Fees payable by Customer for the forthcoming Billing Cycle.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. MaintenanceServices
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective February 10th 2023 to May 20th 2023
DownloadTable of Contents
NORTH AMERICAN
TEMETRA SOLUTION AGREEMENT
THIS NORTH AMERICAN TEMETRA SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Effective Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Software | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Covered Third Party Equipment | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. Initial Subscription Fees shall be prorated based on the number of months remaining in the current Billing Cycle following the Service Offering Commencement Date. Itron may discontinue a Service Offering by providing Customer with written notice of discontinuance no less than 180 days prior to the commencement of a Billing Cycle. Otherwise, Itron will provide Customer with a renewal notice for the Service Offering at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue a Service Offering by providing Itron with written notice of non-renewal no less than 90 days prior to the commencement of a Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each Billing Cycle, Itron will provide Customer with an invoice for Subscription Fees payable by Customer for the forthcoming Billing Cycle.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. At the end of the Term of the Agreement or SaaS service (unless the Agreement or SaaS service is renewed pursuant to duly executed amendment or a new agreement), or in the event of its early termination in accordance with the terms of the Agreement, Customer will confirm to Itron in writing, no later than on the effective date of expiration or termination, its decision to close the SaaS service (“Closure Confirmation”). Provided that Itron has received the Closure Confirmation from Customer within the aforementioned period, Itron will maintain Customer's access to the system for a maximum period of three (3) months from receipt of the Closure Confirmation, for the sole purpose of enabling Customer to retrieve the following Customer data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by the SaaS service, or the format already supported by the SaaS service. At the end of this three (3) month period, the Customer data will be permanently deleted and will no longer be recoverable.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. MaintenanceServices
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective December 14th 2022 to February 10th 2023
DownloadTable of Contents
NORTH AMERICAN
TEMETRA SOLUTION AGREEMENT
THIS NORTH AMERICAN TEMETRA SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
1. Definitions.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Effective Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote, or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Software | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Covered Third Party Equipment | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Party means Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a valid quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Quote for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. Initial Subscription Fees shall be prorated based on the number of months remaining in the current Billing Cycle following the Service Offering Commencement Date. Itron may discontinue a Service Offering by providing Customer with written notice of discontinuance no less than 180 days prior to the commencement of a Billing Cycle. Otherwise, Itron will provide Customer with a renewal notice for the Service Offering at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue a Service Offering by providing Itron with written notice of non-renewal no less than 90 days prior to the commencement of a Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each Billing Cycle, Itron will provide Customer with an invoice for Subscription Fees payable by Customer for the forthcoming Billing Cycle.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer shall indemnify and hold Itron harmless from any tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. At the end of the Term of the Agreement or SaaS service (unless the Agreement or SaaS service is renewed pursuant to duly executed amendment or a new agreement), or in the event of its early termination in accordance with the terms of the Agreement, Customer will confirm to Itron in writing, no later than on the effective date of expiration or termination, its decision to close the SaaS service (“Closure Confirmation”). Provided that Itron has received the Closure Confirmation from Customer within the aforementioned period, Itron will maintain Customer's access to the system for a maximum period of three (3) months from receipt of the Closure Confirmation, for the sole purpose of enabling Customer to retrieve the following Customer data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by the SaaS service, or the format already supported by the SaaS service. At the end of this three (3) month period, the Customer data will be permanently deleted and will no longer be recoverable.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10. Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law and Venue”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may proceed in accordance with the provisions of Section 19 (Governing Law and Venue). Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law and Venue. This Agreement and all related documents, including all addenda attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Texas, United States of America (including its statutes of limitations), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against any other Party in any way arising from or relating to this Agreement and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the United States District Court for the Western District of Texas, if such court does not have subject matter jurisdiction, the courts of the State of Texas sitting in Travis County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the United States District Court for the Western District of Texas or, if such court does not have subject matter jurisdiction, the courts of the State of Texas sitting in Travis County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective August 13th 2021 to December 14th 2022
DownloadTable of Contents
NORTH AMERICAN
TEMETRA SOLUTION AGREEMENT
THIS NORTH AMERICAN TEMETRA SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
1. Definitions.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Effective Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote, or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Software | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Covered Third Party Equipment | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Party means Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a valid quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Quote for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. Initial Subscription Fees shall be prorated based on the number of months remaining in the current Billing Cycle following the Service Offering Commencement Date. Itron may discontinue a Service Offering by providing Customer with written notice of discontinuance no less than 180 days prior to the commencement of a Billing Cycle. Otherwise, Itron will provide Customer with a renewal notice for the Service Offering at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue a Service Offering by providing Itron with written notice of non-renewal no less than 90 days prior to the commencement of a Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each Billing Cycle, Itron will provide Customer with an invoice for Subscription Fees payable by Customer for the forthcoming Billing Cycle.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer shall indemnify and hold Itron harmless from any tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. At the end of the Term of the Agreement or SaaS service (unless the Agreement or SaaS service is renewed pursuant to duly executed amendment or a new agreement), or in the event of its early termination in accordance with the terms of the Agreement, Customer will confirm to Itron in writing, no later than on the effective date of expiration or termination, its decision to close the SaaS service (“Closure Confirmation”). Provided that Itron has received the Closure Confirmation from Customer within the aforementioned period, Itron will maintain Customer's access to the system for a maximum period of three (3) months from receipt of the Closure Confirmation, for the sole purpose of enabling Customer to retrieve the following Customer data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by the SaaS service, or the format already supported by the SaaS service. At the end of this three (3) month period, the Customer data will be permanently deleted and will no longer be recoverable.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10. Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law and Venue”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may proceed in accordance with the provisions of Section 19 (Governing Law and Venue). Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law and Venue. This Agreement and all related documents, including all addenda attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Texas, United States of America (including its statutes of limitations), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against any other Party in any way arising from or relating to this Agreement and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the United States District Court for the Western District of Texas, if such court does not have subject matter jurisdiction, the courts of the State of Texas sitting in Travis County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the United States District Court for the Western District of Texas or, if such court does not have subject matter jurisdiction, the courts of the State of Texas sitting in Travis County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective March 17th 2021 to August 13th 2021
DownloadTable of Contents
NORTH AMERICAN
TEMETRA SOLUTION AGREEMENT
THIS NORTH AMERICAN TEMETRA SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
1. Definitions.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Effective Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote, or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Software | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Covered Third Party Equipment | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Party means Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a valid quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Quote for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. Initial Subscription Fees shall be prorated based on the number of months remaining in the current Billing Cycle following the Service Offering Commencement Date. Itron may discontinue a Service Offering by providing Customer with written notice of discontinuance no less than 180 days prior to the commencement of a Billing Cycle. Otherwise, Itron will provide Customer with a renewal notice for the Service Offering at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue a Service Offering by providing Itron with written notice of non-renewal no less than 90 days prior to the commencement of a Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each Billing Cycle, Itron will provide Customer with an invoice for Subscription Fees payable by Customer for the forthcoming Billing Cycle.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer shall indemnify and hold Itron harmless from any tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. At the end of the Term of the Agreement or SaaS service (unless the Agreement or SaaS service is renewed pursuant to duly executed amendment or a new agreement), or in the event of its early termination in accordance with the terms of the Agreement, Customer will confirm to Itron in writing, no later than on the effective date of expiration or termination, its decision to close the SaaS service (“Closure Confirmation”). Provided that Itron has received the Closure Confirmation from Customer within the aforementioned period, Itron will maintain Customer's access to the system for a maximum period of three (3) months from receipt of the Closure Confirmation, for the sole purpose of enabling Customer to retrieve the following Customer data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by the SaaS service, or the format already supported by the SaaS service. At the end of this three (3) month period, the Customer data will be permanently deleted and will no longer be recoverable.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10. Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law and Venue”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may proceed in accordance with the provisions of Section 15 (Governing Law and Venue). Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law and Venue. This Agreement and all related documents, including all addenda attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Texas, United States of America (including its statutes of limitations), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against any other Party in any way arising from or relating to this Agreement and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the United States District Court for the Western District of Texas, if such court does not have subject matter jurisdiction, the courts of the State of Texas sitting in Travis County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the United States District Court for the Western District of Texas or, if such court does not have subject matter jurisdiction, the courts of the State of Texas sitting in Travis County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective February 22nd 2021 to March 17th 2021
DownloadTable of Contents
NORTH AMERICAN
TEMETRA SOLUTION AGREEMENT
THIS NORTH AMERICAN TEMETRA SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
1. Definitions.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Effective Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote, or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Software | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Covered Third Party Equipment | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Party means Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a valid quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Quote for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. Initial Subscription Fees shall be prorated based on the number of months remaining in the current Billing Cycle following the Service Offering Commencement Date. Itron may discontinue a Service Offering by providing Customer with written notice of discontinuance no less than 180 days prior to the commencement of a Billing Cycle. Otherwise, Itron will provide Customer with a renewal notice for the Service Offering at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue a Service Offering by providing Itron with written notice of non-renewal no less than 90 days prior to the commencement of a Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each Billing Cycle, Itron will provide Customer with an invoice for Subscription Fees payable by Customer for the forthcoming Billing Cycle.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer shall indemnify and hold Itron harmless from any tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. At the end of the Term of the Agreement or SaaS service (unless the Agreement or SaaS service is renewed pursuant to duly executed amendment or a new agreement), or in the event of its early termination in accordance with the terms of the Agreement, Customer will confirm to Itron in writing, no later than on the effective date of expiration or termination, its decision to close the SaaS service (“Closure Confirmation”). Provided that Itron has received the Closure Confirmation from Customer within the aforementioned period, Itron will maintain Customer's access to the system for a maximum period of three (3) months from receipt of the Closure Confirmation, for the sole purpose of enabling Customer to retrieve the following Customer data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by the SaaS service, or the format already supported by the SaaS service. At the end of this three (3) month period, the Customer data will be permanently deleted and will no longer be recoverable.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10. Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law and Venue”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may proceed in accordance with the provisions of Section 15 (Governing Law and Venue). Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law and Venue. This Agreement and all related documents, including all addenda attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Texas, United States of America (including its statutes of limitations), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against any other Party in any way arising from or relating to this Agreement and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the United States District Court for the Western District of Texas, if such court does not have subject matter jurisdiction, the courts of the State of Texas sitting in Travis County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the United States District Court for the Western District of Texas or, if such court does not have subject matter jurisdiction, the courts of the State of Texas sitting in Travis County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective February 22nd 2021 to February 22nd 2021
DownloadTable of Contents
NORTH AMERICAN
TEMETRA SOLUTION AGREEMENT
THIS NORTH AMERICAN TEMETRA SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
1. Definitions.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Effective Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote, or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Software | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Covered Third Party Equipment | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Party means Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a valid quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Quote for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. Initial Subscription Fees shall be prorated based on the number of months remaining in the current Billing Cycle following the Service Offering Commencement Date. Itron may discontinue a Service Offering by providing Customer with written notice of discontinuance no less than 180 days prior to the commencement of a Billing Cycle. Otherwise, Itron will provide Customer with a renewal notice for the Service Offering at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue a Service Offering by providing Itron with written notice of non-renewal no less than 90 days prior to the commencement of a Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each Billing Cycle, Itron will provide Customer with an invoice for Subscription Fees payable by Customer for the forthcoming Billing Cycle.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer shall indemnify and hold Itron harmless from any tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. At the end of the Term of the Agreement or SaaS service (unless the Agreement or SaaS service is renewed pursuant to duly executed amendment or a new agreement), or in the event of its early termination in accordance with the terms of the Agreement, Customer will confirm to Itron in writing, no later than on the effective date of expiration or termination, its decision to close the SaaS service (“Closure Confirmation”). Provided that Itron has received the Closure Confirmation from Customer within the aforementioned period, Itron will maintain Customer's access to the system for a maximum period of three (3) months from receipt of the Closure Confirmation, for the sole purpose of enabling Customer to retrieve the following Customer data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by the SaaS service, or the format already supported by the SaaS service. At the end of this three (3) month period, the Customer data will be permanently deleted and will no longer be recoverable.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10. Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law and Venue”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may proceed in accordance with the provisions of Section 15 (Governing Law and Venue). Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law and Venue. This Agreement and all related documents, including all addenda attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Texas, United States of America (including its statutes of limitations), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against any other Party in any way arising from or relating to this Agreement and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the United States District Court for the Western District of Texas, if such court does not have subject matter jurisdiction, the courts of the State of Texas sitting in Travis County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the United States District Court for the Western District of Texas or, if such court does not have subject matter jurisdiction, the courts of the State of Texas sitting in Travis County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective February 17th 2021 to February 22nd 2021
DownloadTable of Contents
NORTH AMERICAN
TEMETRA SOLUTION AGREEMENT
THIS NORTH AMERICAN TEMETRA SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
1. Definitions.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Effective Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on Quote for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Software | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Covered Third Party Equipment | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote.
Operating Condition means performance in accordance with applicable published Itron specifications.
Party means Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Quote whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Quote for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Fees for Services and Equipment are set forth in the Quote. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. Initial Subscription Fees shall be prorated based on the number of months remaining in the current Billing Cycle following the Service Offering Commencement Date. Itron may discontinue a Service Offering by providing Customer with written notice of discontinuance no less than 180 days prior to the commencement of a Billing Cycle. Otherwise, Itron will provide Customer with a renewal notice for the Service Offering at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue a Service Offering by providing Itron with written notice of non-renewal no less than 90 days prior to the commencement of a Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each Billing Cycle, Itron will provide Customer with an invoice for Subscription Fees payable by Customer for the forthcoming Billing Cycle.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer shall indemnify and hold Itron harmless from any tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. At the end of the Term of the Agreement or SaaS service (unless the Agreement or SaaS service is renewed pursuant to duly executed amendment or a new agreement), or in the event of its early termination in accordance with the terms of the Agreement, Customer will confirm to Itron in writing, no later than on the effective date of expiration or termination, its decision to close the SaaS service (“Closure Confirmation”). Provided that Itron has received the Closure Confirmation from Customer within the aforementioned period, Itron will maintain Customer's access to the system for a maximum period of three (3) months from receipt of the Closure Confirmation, for the sole purpose of enabling Customer to retrieve the following Customer data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by the SaaS service, or the format already supported by the SaaS service. At the end of this three (3) month period, the Customer data will be permanently deleted and will no longer be recoverable.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services.
10. Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law and Venue”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may proceed in accordance with the provisions of Section 15 (Governing Law and Venue). Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law and Venue. This Agreement and all related documents, including all addenda attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Texas, United States of America (including its statutes of limitations), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against any other Party in any way arising from or relating to this Agreement and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the United States District Court for the Western District of Texas, if such court does not have subject matter jurisdiction, the courts of the State of Texas sitting in Travis County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the United States District Court for the Western District of Texas or, if such court does not have subject matter jurisdiction, the courts of the State of Texas sitting in Travis County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective February 12th 2021 to February 17th 2021
DownloadTable of Contents
NORTH AMERICAN
TEMETRA SOLUTION AGREEMENT
THIS NORTH AMERICAN TEMETRA SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
1. Definitions.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Effective Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on Quote for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Software | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Covered Third Party Equipment | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote.
Operating Condition means performance in accordance with applicable published Itron specifications.
Party means Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Quote whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Quote for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Fees for Services and Equipment are set forth in the Quote. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. Initial Subscription Fees shall be prorated based on the number of months remaining in the current Billing Cycle following the Service Offering Commencement Date. Itron may discontinue a Service Offering by providing Customer with written notice of discontinuance no less than 180 days prior to the commencement of a Billing Cycle. Otherwise, Itron will provide Customer with a renewal notice for the Service Offering at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue a Service Offering by providing Itron with written notice of non-renewal no less than 90 days prior to the commencement of a Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each Billing Cycle, Itron will provide Customer with an invoice for Subscription Fees payable by Customer for the forthcoming Billing Cycle.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer shall indemnify and hold Itron harmless from any tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. At the end of the Term of the Agreement or SaaS service (unless the Agreement or SaaS service is renewed pursuant to duly executed amendment or a new agreement), or in the event of its early termination in accordance with the terms of the Agreement, Customer will confirm to Itron in writing, no later than on the effective date of expiration or termination, its decision to close the SaaS service (“Closure Confirmation”). Provided that Itron has received the Closure Confirmation from Customer within the aforementioned period, Itron will maintain Customer's access to the system for a maximum period of three (3) months from receipt of the Closure Confirmation, for the sole purpose of enabling Customer to retrieve the following Customer data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by the SaaS service, or the format already supported by the SaaS service. At the end of this three (3) month period, the Customer data will be permanently deleted and will no longer be recoverable.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services.
10. Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law and Venue”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may proceed in accordance with the provisions of Section 15 (Governing Law and Venue). Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law and Venue. This Agreement and all related documents, including all addenda attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Texas, United States of America (including its statutes of limitations), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against any other Party in any way arising from or relating to this Agreement and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the United States District Court for the Western District of Texas, if such court does not have subject matter jurisdiction, the courts of the State of Texas sitting in Travis County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the United States District Court for the Western District of Texas or, if such court does not have subject matter jurisdiction, the courts of the State of Texas sitting in Travis County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective February 12th 2021 to February 12th 2021
DownloadTable of Contents
NORTH AMERICAN
TEMETRA SOLUTION AGREEMENT
THIS NORTH AMERICAN TEMETRA SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warranty that: (a) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions, (b) you have read and understand this Agreement, and (iii) you agree, on behalf of the party that you represent, to this Agreement.
Customer and Itron are each referred to as a “Party” and collectively as the “Parties” to this Agreement.
1. Definitions.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Effective Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means an Itron authorized third-party distributor of Services and Equipment.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means [TBD – need to see demo/how customer is identified and accepts].
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on Quote for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Software | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Covered Third Party Equipment | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance & Support”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote.
Operating Condition means performance in accordance with applicable published Itron specifications.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided by Itron or a Channel Partner to Customer.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Quote whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Quote for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Fees for Services and Equipment are set forth in the Quote. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. Initial Subscription Fees shall be prorated based on the number of months remaining in the current Billing Cycle following the Service Offering Commencement Date. Itron may discontinue a Service Offering by providing Customer with written notice of discontinuance no less than 180 days prior to the commencement of a Billing Cycle. Otherwise, Itron will provide Customer with a renewal notice for the Service Offering at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue a Service Offering by providing Itron with written notice of non-renewal no less than 90 days prior to the commencement of a Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each Billing Cycle, Itron will provide Customer with an invoice for Subscription Fees payable by Customer for the forthcoming Billing Cycle.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs upon the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any services and/or delivery of any products if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer shall indemnify and hold Itron harmless from any tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation in connection with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 5.1.2 (“Restrictions on Use”) or Section 5.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 5.1.2 (“Restrictions on Use”), Section 5.1.3 (“Content Restrictions”) or Section 5.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance.System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. At the end of the Term of the Agreement or SaaS service (unless the Agreement or SaaS service is renewed pursuant to duly executed amendment or a new agreement), or in the event of its early termination in accordance with the terms of the Agreement, Customer will confirm to Itron in writing, no later than on the effective date of expiration or termination, its decision to close the SaaS service (“Closure Confirmation”). Provided that Itron has received the Closure Confirmation from Customer within the aforementioned period, Itron will maintain Customer's access to the system for a maximum period of three (3) months from receipt of the Closure Confirmation, for the sole purpose of enabling Customer to retrieve the following Customer data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by the SaaS service, or the format already supported by the SaaS service. At the end of this three (3) month period, the Customer data will be permanently deleted and will no longer be recoverable.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring.Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services.
10. Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.6 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property.Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of these General Terms & Conditions shall survive termination or expiration of this Agreement: 1 (Introduction), 2 (Definitions), 3 (Term), 4.2 (Disclaimer), 5 (Intellectual Property), 6 (Fees, Invoicing, Payment and Taxes), 9 (Data Protection), 10 (Confidentiality), 11 (Termination), 12 (Survival), 13 (Limitation of Liability), 14 (Disputes), 15 (Governing Law and Venue), 17 (Publicity), 18 (Sub-contractor and Outsourcer), 19 (Independent Contractor), and 20 (Miscellaneous).
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may proceed in accordance with the provisions of Section 15 (Governing Law and Venue). Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law and Venue. This Agreement and all related documents, including all addenda attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Texas, United States of America (including its statutes of limitations), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against any other Party in any way arising from or relating to this Agreement and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the United States District Court for the Western District of Texas, if such court does not have subject matter jurisdiction, the courts of the State of Texas sitting in Travis County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the United States District Court for the Western District of Texas or, if such court does not have subject matter jurisdiction, the courts of the State of Texas sitting in Travis County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective February 12th 2021 to February 12th 2021
DownloadTable of Contents
NORTH AMERICAN
TEMETRA SOLUTION AGREEMENT
THIS NORTH AMERICAN TEMETRA SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warranty that: (a) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions, (b) you have read and understand this Agreement, and (iii) you agree, on behalf of the party that you represent, to this Agreement.
Customer and Itron are each referred to as a “Party” and collectively as the “Parties” to this Agreement.
1. Definitions.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Effective Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means an Itron authorized third-party distributor of Services and Equipment.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means [TBD – need to see demo/how customer is identified and accepts].
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on Quote for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Software | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Covered Third Party Equipment | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance & Support”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote.
Operating Condition means performance in accordance with applicable published Itron specifications.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided by Itron or a Channel Partner to Customer.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Quote whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Quote for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Fees for Services and Equipment are set forth in the Quote. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. Initial Subscription Fees shall be prorated based on the number of months remaining in the current Billing Cycle following the Service Offering Commencement Date. Itron may discontinue a Service Offering by providing Customer with written notice of discontinuance no less than 180 days prior to the commencement of a Billing Cycle. Otherwise, Itron will provide Customer with a renewal notice for the Service Offering at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue a Service Offering by providing Itron with written notice of non-renewal no less than 90 days prior to the commencement of a Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each Billing Cycle, Itron will provide Customer with an invoice for Subscription Fees payable by Customer for the forthcoming Billing Cycle.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs upon the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any services and/or delivery of any products if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer shall indemnify and hold Itron harmless from any tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation in connection with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 5.1.2 (“Restrictions on Use”) or Section 5.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 5.1.2 (“Restrictions on Use”), Section 5.1.3 (“Content Restrictions”) or Section 5.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance.System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. At the end of the Term of the Agreement or SaaS service (unless the Agreement or SaaS service is renewed pursuant to duly executed amendment or a new agreement), or in the event of its early termination in accordance with the terms of the Agreement, Customer will confirm to Itron in writing, no later than on the effective date of expiration or termination, its decision to close the SaaS service (“Closure Confirmation”). Provided that Itron has received the Closure Confirmation from Customer within the aforementioned period, Itron will maintain Customer's access to the system for a maximum period of three (3) months from receipt of the Closure Confirmation, for the sole purpose of enabling Customer to retrieve the following Customer data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by the SaaS service, or the format already supported by the SaaS service. At the end of this three (3) month period, the Customer data will be permanently deleted and will no longer be recoverable.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring.Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services.
10. Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.6 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property.Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of these General Terms & Conditions shall survive termination or expiration of this Agreement: 1 (Introduction), 2 (Definitions), 3 (Term), 4.2 (Disclaimer), 5 (Intellectual Property), 6 (Fees, Invoicing, Payment and Taxes), 9 (Data Protection), 10 (Confidentiality), 11 (Termination), 12 (Survival), 13 (Limitation of Liability), 14 (Disputes), 15 (Governing Law and Venue), 17 (Publicity), 18 (Sub-contractor and Outsourcer), 19 (Independent Contractor), and 20 (Miscellaneous).
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may proceed in accordance with the provisions of Section 15 (Governing Law and Venue). Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law and Venue. This Agreement and all related documents, including all addenda attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Texas, United States of America (including its statutes of limitations), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against any other Party in any way arising from or relating to this Agreement and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the United States District Court for the Western District of Texas, if such court does not have subject matter jurisdiction, the courts of the State of Texas sitting in Travis County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the United States District Court for the Western District of Texas or, if such court does not have subject matter jurisdiction, the courts of the State of Texas sitting in Travis County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
STANDARD NAM Cellular AMI (Water & Gas)
Effective October 8th 2024
DownloadTable of Contents
NORTH AMERICAN
CELLULAR AMI (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN CELLULAR AMI (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense. For the avoidance of doubt, Customer is responsible for providing WAN connectivity.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to store, install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION VIA CUSTOMER OR THIRD PARTY WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DISCONTINUANCE, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer, or (vii) use of any Customer or third-party wireless data services. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. Cellular AMI Use Restrictions.
26.1. Limitations. Customer’s use of Cellular AMI (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use Cellular AMI (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for Cellular AMI (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) Cellular AMI (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of Cellular AMI (Water & Gas).
27.1. Service Level Definitions. The following defined terms are applicable to Cellular AMI (Water & Gas) service levels:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed, operated, and maintained according to Itron published policies and procedures; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (d) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (e) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (1) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (2) the Endpoint is under field investigation.
Billing Window means a rolling three-day period during which register read data is collected.
Billing Window Read Rate means the percentage of Available Endpoints from which register read data has been collected by Temetra during the Billing Window or the twenty-four (24) hours immediately preceding the Billing Window.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly Billing Window Read Rate of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed 98.5%. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective April 17th 2024 to October 8th 2024
DownloadTable of Contents
NORTH AMERICAN
CELLULAR AMI (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN CELLULAR AMI (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense. For the avoidance of doubt, Customer is responsible for providing WAN connectivity.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to store, install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION VIA CUSTOMER OR THIRD PARTY WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DISCONTINUANCE, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer, or (vii) use of any Customer or third-party wireless data services. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. Cellular AMI Use Restrictions.
26.1. Limitations. Customer’s use of Cellular AMI (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use Cellular AMI (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for Cellular AMI (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) Cellular AMI (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of Cellular AMI (Water & Gas).
27.1. Service Level Definitions. The following defined terms are applicable to Cellular AMI (Water & Gas) service levels:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed, operated, and maintained according to Itron published policies and procedures; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (d) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (e) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (1) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (2) the Endpoint is under field investigation.
Billing Window means a rolling three-day period during which register read data is collected.
Billing Window Read Rate means the percentage of Available Endpoints from which register read data has been collected by Temetra during the Billing Window or the twenty-four (24) hours immediately preceding the Billing Window.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly Billing Window Read Rate of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed 98.5%. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective November 1st 2023 to April 17th 2024
DownloadTable of Contents
NORTH AMERICAN
CELLULAR AMI (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN CELLULAR AMI (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense. For the avoidance of doubt, Customer is responsible for providing WAN connectivity.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION VIA CUSTOMER OR THIRD PARTY WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DISCONTINUANCE, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer, or (vii) use of any Customer or third-party wireless data services. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. Cellular AMI Use Restrictions.
26.1. Limitations. Customer’s use of Cellular AMI (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use Cellular AMI (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for Cellular AMI (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) Cellular AMI (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of Cellular AMI (Water & Gas).
27.1. Service Level Definitions. The following defined terms are applicable to Cellular AMI (Water & Gas) service levels:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed, operated, and maintained according to Itron published policies and procedures; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (d) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (e) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (1) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (2) the Endpoint is under field investigation.
Billing Window means a rolling three-day period during which register read data is collected.
Billing Window Read Rate means the percentage of Available Endpoints from which register read data has been collected by Temetra during the Billing Window or the twenty-four (24) hours immediately preceding the Billing Window.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly Billing Window Read Rate of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed 98.5%. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective September 5th 2023 to November 1st 2023
DownloadTable of Contents
NORTH AMERICAN
CELLULAR AMI (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN CELLULAR AMI (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense. For the avoidance of doubt, Customer is responsible for providing WAN connectivity.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION VIA CUSTOMER OR THIRD PARTY WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer, or (vii) use of any Customer or third-party wireless data services. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. Cellular AMI Use Restrictions.
26.1. Limitations. Customer’s use of Cellular AMI (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use Cellular AMI (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for Cellular AMI (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) Cellular AMI (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of Cellular AMI (Water & Gas).
27.1. Service Level Definitions. The following defined terms are applicable to Cellular AMI (Water & Gas) service levels:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed, operated, and maintained according to Itron published policies and procedures; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (d) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (e) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (1) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (2) the Endpoint is under field investigation.
Billing Window means a rolling three-day period during which register read data is collected.
Billing Window Read Rate means the percentage of Available Endpoints from which register read data has been collected by Temetra during the Billing Window or the twenty-four (24) hours immediately preceding the Billing Window.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly Billing Window Read Rate of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed 98.5%. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective September 5th 2023 to September 5th 2023
DownloadTable of Contents
NORTH AMERICAN
AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense. For the avoidance of doubt, Customer is responsible for providing WAN connectivity.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION VIA CUSTOMER OR THIRD PARTY WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer, or (vii) use of any Customer or third-party wireless data services. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. AMI Essentials Use Restrictions.
26.1. Limitations. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use AMI Essentials (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for AMI Essentials (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) AMI Essentials (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of AMI Essentials (Water & Gas).
27.1. Service Level Definitions. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed, operated, and maintained according to Itron published policies and procedures; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (d) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (e) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (1) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (2) the Endpoint is under field investigation.
Billing Window means a rolling three-day period during which register read data is collected.
Billing Window Read Rate means the percentage of Available Endpoints from which register read data has been collected by Temetra during the Billing Window or the twenty-four (24) hours immediately preceding the Billing Window.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly Billing Window Read Rate of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed 98.5%. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective August 9th 2023 to September 5th 2023
DownloadTable of Contents
NORTH AMERICAN
AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense. For the avoidance of doubt, Customer is responsible for providing WAN connectivity.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION VIA CUSTOMER OR THIRD PARTY WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer, or (vii) use of any Customer or third-party wireless data services. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. AMI Essentials Use Restrictions.
26.1. Limitations. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use AMI Essentials (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for AMI Essentials (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) AMI Essentials (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of AMI Essentials (Water & Gas).
27.1. Service Level Definitions. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed according to Itron installation instructions; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) the Endpoint is communicating with Itron’s data collection platform and a register read has been received from the Endpoint for three (3) consecutive days; (d) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (e) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (f) Customer operates and maintains the Endpoint according to Itron’s published policies and procedures; (g) the solution has been optimized as part of the deployment process, including read times to support optimal performance and avoid network congestion; (h) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (a) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (b) the Endpoint is under field investigation.
Billing Window means a rolling three-day period during which register read data is collected.
Billing Window Read Rate means the percentage of Available Endpoints from which register read data has been collected by Temetra during the Billing Window or the twenty-four (24) hours immediately preceding the Billing Window.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly Billing Window Read Rate of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed 98.5%. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective July 19th 2023 to August 9th 2023
DownloadTable of Contents
NORTH AMERICAN
AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense. For the avoidance of doubt, Customer is responsible for providing WAN connectivity.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION VIA CUSTOMER OR THIRD PARTY WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer, or (vii) use of any Customer or third-party wireless data services. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. AMI Essentials Use Restrictions.
26.1. Limitations. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use AMI Essentials (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for AMI Essentials (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) AMI Essentials (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of AMI Essentials (Water & Gas).
27.1. Service Level Definitions. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed according to Itron installation instructions; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) the Endpoint is communicating with Itron’s data collection platform and a register read has been received from the Endpoint for three (3) consecutive days; (d) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (e) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (f) Customer operates and maintains the Endpoint according to Itron’s published policies and procedures; (g) the solution has been optimized as part of the deployment process, including read times to support optimal performance and avoid network congestion; (h) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (a) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (b) the Endpoint is under field investigation.
Billing Read Rate means the percentage of Available Endpoints from which register read data has been collected over a rolling 3-day period, measured for each calendar day.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly Billing Read Rate of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed 98.5%. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective June 5th 2023 to July 19th 2023
DownloadTable of Contents
NORTH AMERICAN
AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. AMI Essentials Use Restrictions.
26.1. Limitations. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use AMI Essentials (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for AMI Essentials (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) AMI Essentials (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of AMI Essentials (Water & Gas).
27.1. Service Level Definitions. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed according to Itron installation instructions; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) the Endpoint is communicating with Itron’s data collection platform and a register read has been received from the Endpoint for three (3) consecutive days; (d) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (e) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (f) Customer operates and maintains the Endpoint according to Itron’s published policies and procedures; (g) the solution has been optimized as part of the deployment process, including read times to support optimal performance and avoid network congestion; (h) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (a) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (b) the Endpoint is under field investigation.
Billing Read Rate means the percentage of Available Endpoints from which register read data has been collected over a rolling 3-day period, measured for each calendar day.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly Billing Read Rate of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed 98.5%. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
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Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective May 26th 2023 to June 5th 2023
DownloadTable of Contents
NORTH AMERICAN
AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. AMI Essentials Use Restrictions.
26.1. Limitations. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use AMI Essentials (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for AMI Essentials (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) AMI Essentials (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of AMI Essentials (Water & Gas).
27.1. Service Level Definitions. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed according to Itron installation instructions; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) the Endpoint is communicating with Itron’s data collection platform and a register read has been received from the Endpoint for three (3) consecutive days; (d) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (e) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (f) Customer operates and maintains the Endpoint according to Itron’s published policies and procedures; (g) the solution has been optimized as part of the deployment process, including read times to support optimal performance and avoid network congestion; (h) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (a) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (b) the Endpoint is under field investigation.
Billing Read Rate means the percentage of Available Endpoints from which register read data has been collected over a rolling 3-day period, measured for each calendar day.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly Billing Read Rate of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed 98.5%. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
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Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective May 23rd 2023 to May 26th 2023
DownloadTable of Contents
NORTH AMERICAN
AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. AMI Essentials Use Restrictions.
26.1. Limitations. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use AMI Essentials (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for AMI Essentials (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) AMI Essentials (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of AMI Essentials (Water & Gas).
27.1. Service Level Definitions. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed according to Itron installation instructions; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) the Endpoint is communicating with Itron’s data collection platform and a register read has been received from the Endpoint for three (3) consecutive days; (d) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (e) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (f) Customer operates and maintains the Endpoint according to Itron’s published policies and procedures; (g) the solution has been optimized as part of the deployment process, including read times to support optimal performance and avoid network congestion; (h) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (a) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (b) the Endpoint is under field investigation.
Billing Read Rate means the percentage of Available Endpoints from which register read data has been collected over a rolling 3-day period, measured for each calendar day.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly read rates of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed the service level commitments as set forth in the table below. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Service Deliverable | Monthly Service Level |
3-Day Billing Read Rate | >98% |
96% - 98% | |
94% - 96% | |
< 94% |
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective May 23rd 2023 to May 23rd 2023
DownloadTable of Contents
NORTH AMERICAN
AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. AMI Essentials Use Restrictions.
26.1. Limitations. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use AMI Essentials (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for AMI Essentials (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) AMI Essentials (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of AMI Essentials (Water & Gas).
27.1. Service Level Definitions. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed according to Itron installation instructions; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) the Endpoint is communicating with Itron’s data collection platform and a register read has been received from the Endpoint for three (3) consecutive days; (d) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (e) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (f) Customer operates and maintains the Endpoint according to Itron’s published policies and procedures; (g) the solution has been optimized as part of the deployment process, including read times to support optimal performance and avoid network congestion; (h) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (a) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (b) the Endpoint is under field investigation.
Billing Read Rate means the percentage of Available Endpoints from which register read data has been collected over a rolling 3-day period, measured for each calendar day.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly read rates of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed the service level commitments as set forth in the table below. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Service Deliverable | Monthly Service Level |
3-Day Billing Read Rate | >98% |
96% - 98.5% | |
94% - 96% | |
< 94% |
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective May 20th 2023 to May 23rd 2023
DownloadTable of Contents
NORTH AMERICAN
AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. AMI Essentials Use Restrictions.
26.1. Limitations. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use AMI Essentials (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for AMI Essentials (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) AMI Essentials (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of AMI Essentials (Water & Gas).
27.1. Service Level Definitions. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed according to Itron installation instructions; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) the Endpoint is communicating with Itron’s data collection platform and a register read has been received from the Endpoint for three (3) consecutive days; (d) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (e) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (f) Customer operates and maintains the Endpoint according to Itron’s published policies and procedures; (g) the solution has been optimized as part of the deployment process, including read times to support optimal performance and avoid network congestion; (h) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (a) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (b) the Endpoint is under field investigation.
Billing Read Rate means the percentage of Available Endpoints from which register read data has been collected over a rolling 3-day period, measured for each calendar day.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly read rates of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed the service level commitments as set forth in the table below. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Service Deliverable | Monthly Service Level |
3-Day Billing Read Rate | >98% |
96% - 98.5% | |
94% - 96% | |
< 94% |
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective May 19th 2023 to May 20th 2023
DownloadTable of Contents
NORTH AMERICAN
AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Effective Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. At the end of the Term of the Agreement or SaaS service (unless the Agreement or SaaS service is renewed pursuant to duly executed amendment or a new agreement), or in the event of its early termination in accordance with the terms of the Agreement, Customer will confirm to Itron in writing, no later than on the effective date of expiration or termination, its decision to close the SaaS service (“Closure Confirmation”). Provided that Itron has received the Closure Confirmation from Customer within the aforementioned period, Itron will maintain Customer's access to the system for a maximum period of three (3) months from receipt of the Closure Confirmation, for the sole purpose of enabling Customer to retrieve the following Customer data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by the SaaS service, or the format already supported by the SaaS service. At the end of this three (3) month period, the Customer data will be permanently deleted and will no longer be recoverable.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. AMI Essentials Use Restrictions.
26.1. Limitations. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use AMI Essentials (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for AMI Essentials (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) AMI Essentials (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of AMI Essentials (Water & Gas).
27.1. Service Level Definitions. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed according to Itron installation instructions; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) the Endpoint is communicating with Itron’s data collection platform and a register read has been received from the Endpoint for three (3) consecutive days; (d) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (e) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (f) Customer operates and maintains the Endpoint according to Itron’s published policies and procedures; (g) the solution has been optimized as part of the deployment process, including read times to support optimal performance and avoid network congestion; (h) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (a) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (b) the Endpoint is under field investigation.
Billing Read Rate means the percentage of Available Endpoints from which register read data has been collected over a rolling 3-day period, measured for each calendar day.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly read rates of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed the service level commitments as set forth in the table below. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Service Deliverable | Monthly Service Level |
3-Day Billing Read Rate | >98% |
96% - 98.5% | |
94% - 96% | |
< 94% |
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
BASIC AMI Essentials (Water & Gas)
Effective October 8th 2024
DownloadTable of Contents
NORTH AMERICAN
AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to store, install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DISCONTINUANCE, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer, or (vii) use of any Customer or third-party wireless data services. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. AMI Essentials Use Restrictions.
26.1. Limitations. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use AMI Essentials (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
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Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
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Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective April 17th 2024 to October 8th 2024
DownloadTable of Contents
NORTH AMERICAN
AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to store, install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DISCONTINUANCE, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer, or (vii) use of any Customer or third-party wireless data services. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. AMI Essentials Use Restrictions.
26.1. Limitations. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use AMI Essentials (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
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Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective November 1st 2023 to April 17th 2024
DownloadTable of Contents
NORTH AMERICAN
AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DISCONTINUANCE, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer, or (vii) use of any Customer or third-party wireless data services. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. AMI Essentials Use Restrictions.
26.1. Limitations. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use AMI Essentials (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective October 31st 2023 to November 1st 2023
DownloadTable of Contents
NORTH AMERICAN
AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. AMI Essentials Use Restrictions.
26.1. Limitations. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use AMI Essentials (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
NON-STANDARD Cellular AMI (Water & Gas, Credits)
Effective October 8th 2024
DownloadTable of Contents
NORTH AMERICAN
CELLULAR AMI (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN CELLULAR AMI (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense. For the avoidance of doubt, Customer is responsible for providing WAN connectivity.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to store, install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION VIA CUSTOMER OR THIRD-PARTY WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DISCOUNTINUANCE, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer, or (vii) use of an Customer or third-party data services. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. Cellular AMI Use Restrictions.
26.1. Limitations. Customer’s use of Cellular AMI (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use Cellular AMI (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for Cellular AMI (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) Cellular AMI (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of Cellular AMI (Water & Gas).
27.1. Service Level Definitions. The following defined terms are applicable to Cellular AMI (Water & Gas) service levels:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed, operated, and maintained according to Itron published policies and procedures; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (d) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (e) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (1) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (2) the Endpoint is under field investigation.
Billing Window means a rolling three-day period during which register read data is collected.
Billing Window Read Rate means the percentage of Available Endpoints from which register read data has been collected by Temetra during the Billing Window or the twenty-four (24) hours immediately preceding the Billing Window.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly read rates of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed the service level commitments as set forth in the table below. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Service Deliverable | Monthly Service Level | Service Level Credit (% of monthly Subscription Fee for applicable Service Offering) |
Billing Window Read Rate | >98% | 0% |
96% - 98% | 4% | |
94% - 96% | 10% | |
< 94% | 20% |
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
|
Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
|
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective April 17th 2024 to October 8th 2024
DownloadTable of Contents
NORTH AMERICAN
CELLULAR AMI (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN CELLULAR AMI (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense. For the avoidance of doubt, Customer is responsible for providing WAN connectivity.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to store, install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION VIA CUSTOMER OR THIRD-PARTY WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DISCOUNTINUANCE, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer, or (vii) use of an Customer or third-party data services. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. Cellular AMI Use Restrictions.
26.1. Limitations. Customer’s use of Cellular AMI (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use Cellular AMI (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for Cellular AMI (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) Cellular AMI (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of Cellular AMI (Water & Gas).
27.1. Service Level Definitions. The following defined terms are applicable to Cellular AMI (Water & Gas) service levels:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed, operated, and maintained according to Itron published policies and procedures; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (d) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (e) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (1) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (2) the Endpoint is under field investigation.
Billing Window means a rolling three-day period during which register read data is collected.
Billing Window Read Rate means the percentage of Available Endpoints from which register read data has been collected by Temetra during the Billing Window or the twenty-four (24) hours immediately preceding the Billing Window.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly read rates of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed the service level commitments as set forth in the table below. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Service Deliverable | Monthly Service Level | Service Level Credit (% of monthly Subscription Fee for applicable Service Offering) |
Billing Window Read Rate | >98% | 0% |
96% - 98% | 4% | |
94% - 96% | 10% | |
< 94% | 20% |
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
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Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective November 1st 2023 to April 17th 2024
DownloadTable of Contents
NORTH AMERICAN
CELLULAR AMI (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN CELLULAR AMI (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense. For the avoidance of doubt, Customer is responsible for providing WAN connectivity.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION VIA CUSTOMER OR THIRD-PARTY WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DISCOUNTINUANCE, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer, or (vii) use of an Customer or third-party data services. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. Cellular AMI Use Restrictions.
26.1. Limitations. Customer’s use of Cellular AMI (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use Cellular AMI (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for Cellular AMI (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) Cellular AMI (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of Cellular AMI (Water & Gas).
27.1. Service Level Definitions. The following defined terms are applicable to Cellular AMI (Water & Gas) service levels:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed, operated, and maintained according to Itron published policies and procedures; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (d) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (e) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (1) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (2) the Endpoint is under field investigation.
Billing Window means a rolling three-day period during which register read data is collected.
Billing Window Read Rate means the percentage of Available Endpoints from which register read data has been collected by Temetra during the Billing Window or the twenty-four (24) hours immediately preceding the Billing Window.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly read rates of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed the service level commitments as set forth in the table below. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Service Deliverable | Monthly Service Level | Service Level Credit (% of monthly Subscription Fee for applicable Service Offering) |
Billing Window Read Rate | >98% | 0% |
96% - 98% | 4% | |
94% - 96% | 10% | |
< 94% | 20% |
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
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Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective September 5th 2023 to November 1st 2023
DownloadTable of Contents
NORTH AMERICAN
CELLULAR AMI (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN CELLULAR AMI (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense. For the avoidance of doubt, Customer is responsible for providing WAN connectivity.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. Cellular AMI Use Restrictions.
26.1. Limitations. Customer’s use of Cellular AMI (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use Cellular AMI (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for Cellular AMI (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) Cellular AMI (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of Cellular AMI (Water & Gas).
27.1. Service Level Definitions. The following defined terms are applicable to Cellular AMI (Water & Gas) service levels:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed, operated, and maintained according to Itron published policies and procedures; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (d) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (e) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (1) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (2) the Endpoint is under field investigation.
Billing Window means a rolling three-day period during which register read data is collected.
Billing Window Read Rate means the percentage of Available Endpoints from which register read data has been collected by Temetra during the Billing Window or the twenty-four (24) hours immediately preceding the Billing Window.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly read rates of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed the service level commitments as set forth in the table below. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Service Deliverable | Monthly Service Level | Service Level Credit (% of monthly Subscription Fee for applicable Service Offering) |
Billing Window Read Rate | >98% | 0% |
96% - 98% | 4% | |
94% - 96% | 10% | |
< 94% | 20% |
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
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Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
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Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective September 5th 2023 to September 5th 2023
DownloadTable of Contents
NORTH AMERICAN
AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense. For the avoidance of doubt, Customer is responsible for providing WAN connectivity.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. AMI Essentials Use Restrictions.
26.1. Limitations. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use AMI Essentials (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for AMI Essentials (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) AMI Essentials (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of AMI Essentials (Water & Gas).
27.1. Service Level Definitions. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed, operated, and maintained according to Itron published policies and procedures; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (d) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (e) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (1) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (2) the Endpoint is under field investigation.
Billing Window means a rolling three-day period during which register read data is collected.
Billing Window Read Rate means the percentage of Available Endpoints from which register read data has been collected by Temetra during the Billing Window or the twenty-four (24) hours immediately preceding the Billing Window.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly read rates of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed the service level commitments as set forth in the table below. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Service Deliverable | Monthly Service Level | Service Level Credit (% of monthly Subscription Fee for applicable Service Offering) |
Billing Window Read Rate | >98% | 0% |
96% - 98% | 4% | |
94% - 96% | 10% | |
< 94% | 20% |
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
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Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
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Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective August 9th 2023 to September 5th 2023
DownloadTable of Contents
NORTH AMERICAN
AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense. For the avoidance of doubt, Customer is responsible for providing WAN connectivity.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. AMI Essentials Use Restrictions.
26.1. Limitations. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use AMI Essentials (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for AMI Essentials (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) AMI Essentials (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of AMI Essentials (Water & Gas).
27.1. Service Level Definitions. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed according to Itron installation instructions; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) the Endpoint is communicating with Itron’s data collection platform and a register read has been received from the Endpoint for three (3) consecutive days; (d) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (e) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (f) Customer operates and maintains the Endpoint according to Itron’s published policies and procedures; (g) the solution has been optimized as part of the deployment process, including read times to support optimal performance and avoid network congestion; (h) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (a) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (b) the Endpoint is under field investigation.
Billing Window means a rolling three-day period during which register read data is collected.
Billing Window Read Rate means the percentage of Available Endpoints from which register read data has been collected by Temetra during the Billing Window or the twenty-four (24) hours immediately preceding the Billing Window.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly read rates of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed the service level commitments as set forth in the table below. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Service Deliverable | Monthly Service Level | Service Level Credit (% of monthly Subscription Fee for applicable Service Offering) |
Billing Window Read Rate | >98% | 0% |
96% - 98% | 4% | |
94% - 96% | 10% | |
< 94% | 20% |
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
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Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
|
Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
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Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective July 19th 2023 to August 9th 2023
DownloadTable of Contents
NORTH AMERICAN
AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense. For the avoidance of doubt, Customer is responsible for providing WAN connectivity.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. AMI Essentials Use Restrictions.
26.1. Limitations. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use AMI Essentials (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for AMI Essentials (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) AMI Essentials (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of AMI Essentials (Water & Gas).
27.1. Service Level Definitions. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed according to Itron installation instructions; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) the Endpoint is communicating with Itron’s data collection platform and a register read has been received from the Endpoint for three (3) consecutive days; (d) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (e) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (f) Customer operates and maintains the Endpoint according to Itron’s published policies and procedures; (g) the solution has been optimized as part of the deployment process, including read times to support optimal performance and avoid network congestion; (h) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (a) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (b) the Endpoint is under field investigation.
Billing Read Rate means the percentage of Available Endpoints from which register read data has been collected over a rolling 3-day period, measured for each calendar day.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly read rates of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed the service level commitments as set forth in the table below. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Service Deliverable | Monthly Service Level | Service Level Credit (% of monthly Subscription Fee for applicable Service Offering) |
3-Day Billing Read Rate | >98% | 0% |
96% - 98% | 4% | |
94% - 96% | 10% | |
< 94% | 20% |
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
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Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
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Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
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Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective June 5th 2023 to July 19th 2023
DownloadTable of Contents
NORTH AMERICAN
AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. AMI Essentials Use Restrictions.
26.1. Limitations. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use AMI Essentials (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for AMI Essentials (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) AMI Essentials (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of AMI Essentials (Water & Gas).
27.1. Service Level Definitions. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed according to Itron installation instructions; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) the Endpoint is communicating with Itron’s data collection platform and a register read has been received from the Endpoint for three (3) consecutive days; (d) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (e) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (f) Customer operates and maintains the Endpoint according to Itron’s published policies and procedures; (g) the solution has been optimized as part of the deployment process, including read times to support optimal performance and avoid network congestion; (h) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (a) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (b) the Endpoint is under field investigation.
Billing Read Rate means the percentage of Available Endpoints from which register read data has been collected over a rolling 3-day period, measured for each calendar day.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly read rates of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed the service level commitments as set forth in the table below. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Service Deliverable | Monthly Service Level | Service Level Credit (% of monthly Subscription Fee for applicable Service Offering) |
3-Day Billing Read Rate | >98% | 0% |
96% - 98% | 4% | |
94% - 96% | 10% | |
< 94% | 20% |
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
|
Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
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Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
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Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective June 5th 2023 to June 5th 2023
DownloadTable of Contents
NORTH AMERICAN
AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. To the extent not prohibited by law, Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. AMI Essentials Use Restrictions.
26.1. Limitations. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use AMI Essentials (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for AMI Essentials (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) AMI Essentials (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of AMI Essentials (Water & Gas).
27.1. Service Level Definitions. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed according to Itron installation instructions; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) the Endpoint is communicating with Itron’s data collection platform and a register read has been received from the Endpoint for three (3) consecutive days; (d) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (e) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (f) Customer operates and maintains the Endpoint according to Itron’s published policies and procedures; (g) the solution has been optimized as part of the deployment process, including read times to support optimal performance and avoid network congestion; (h) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (a) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (b) the Endpoint is under field investigation.
Billing Read Rate means the percentage of Available Endpoints from which register read data has been collected over a rolling 3-day period, measured for each calendar day.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly read rates of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed the service level commitments as set forth in the table below. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Service Deliverable | Monthly Service Level | Service Level Credit (% of monthly Subscription Fee for applicable Service Offering) |
3-Day Billing Read Rate | >98% | 0% |
96% - 98% | 4% | |
94% - 96% | 10% | |
< 94% | 20% |
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
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Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
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Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
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Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective May 26th 2023 to June 5th 2023
DownloadTable of Contents
NORTH AMERICAN
AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. AMI Essentials Use Restrictions.
26.1. Limitations. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use AMI Essentials (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for AMI Essentials (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) AMI Essentials (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of AMI Essentials (Water & Gas).
27.1. Service Level Definitions. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed according to Itron installation instructions; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) the Endpoint is communicating with Itron’s data collection platform and a register read has been received from the Endpoint for three (3) consecutive days; (d) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (e) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (f) Customer operates and maintains the Endpoint according to Itron’s published policies and procedures; (g) the solution has been optimized as part of the deployment process, including read times to support optimal performance and avoid network congestion; (h) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (a) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (b) the Endpoint is under field investigation.
Billing Read Rate means the percentage of Available Endpoints from which register read data has been collected over a rolling 3-day period, measured for each calendar day.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly read rates of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed the service level commitments as set forth in the table below. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Service Deliverable | Monthly Service Level | Service Level Credit (% of monthly Subscription Fee for applicable Service Offering) |
3-Day Billing Read Rate | >98% | 0% |
96% - 98% | 4% | |
94% - 96% | 10% | |
< 94% | 20% |
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
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Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
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Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
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Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
Effective May 23rd 2023 to May 26th 2023
DownloadTable of Contents
NORTH AMERICAN
AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT
THIS NORTH AMERICAN AMI ESSENTIALS (WATER & GAS) SOLUTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES AND EQUIPMENT DESCRIBED IN A QUOTE THAT ARE PROVIDED BY ITRON, INC. OR ANY OF ITS SUBSIDIARIES (EACH “ITRON”). THE TERMS “SERVICES”, “EQUIPMENT” AND “QUOTE” ARE DEFINED IN THE DEFINITIONS SECTION BELOW.
This Agreement is effective as of the date you accept it (the “Effective Date”) by clicking “Agree”. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to this Agreement, (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Annual Adjustment means Itron’s annual price increase.
Billing Cycle means a period of one year beginning on the Service Offering Commencement Date or any anniversary thereof.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost, or expense (including reasonable attorney’s fees) or other relief.
Channel Partner means a third-party authorized by Itron to distribute Services and/or Equipment to Customer.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a third-party, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Covered Itron Equipment means Itron Equipment for which Customer has purchased Maintenance Services.
Covered Third-Party Equipment means Third-Party Equipment for which Customer has purchased Maintenance Services.
Covered Products mean Software, Covered Itron Equipment and Third-Party Covered Equipment.
Customer means you or, if you are accepting on behalf of your employer or another entity, such employer or entity.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 12 (“Third-Party Claims”) of this Agreement.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 12 (“Third Party Claims”) of this Agreement.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information relating to Services and Equipment provided by Itron, which Itron customarily makes available to its customers.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device from which Customer Data will be collected and managed as part of a Service Offering.
Error means a material failure of Software to comply with applicable published Itron specifications.
Equipment means Itron Equipment and Third-Party Equipment.
Equipment Maintenance Fees mean the annual fees identified in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each category of Covered Itron Equipment and Covered Third-Party Equipment, plus the Annual Adjustment, if any.
Fees means all amounts payable to Itron by Customer for Services and Equipment provided under this Agreement, as set forth in a Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Software functionality that is included in a Release.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.
Itron Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services purchased by Customer, which unless otherwise specified in a Quote provided by Itron, will be as follows:
Covered Product | M&S Commencement Date |
Covered Software provided as a Service Offering | Service Offering Commencement Date |
Covered Itron Equipment | End of warranty period |
Third Party Covered Products | Per applicable third-party service provider terms and conditions |
Maintenance Services means maintenance and support services described in Section 8 (“Maintenance Services”) of this Agreement.
Mobile Device Software means Itron’s Temetra Mobile application.
One-Time Setup Fee means the one-time setup fee(s) for each Service Offering identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron.
Operating Condition means performance in accordance with applicable published Itron specifications.
Partymeans Customer or Itron and Parties means Customer and Itron.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Quote means a quote for Services and/or Equipment provided to Customer by Itron or a Channel Partner.
Release means a collection of Fixes and/or Improvements made available by Itron to Customer.
Service Offering means the Temetra software-as-a-service offering identified on the applicable Purchase Order whereby Itron or its designated provider hosts and provides Customer with access to SaaS Software on Servers via the internet.
SaaS Software means the Itron proprietary data collection and management computer program(s) for the Service Offering(s) purchased by Customer.
Servers means the physical computer hardware owned by Itron or its designated provider on which SaaS Software will be installed, operated, and maintained by or on behalf of Itron.
Service Offering Commencement Date means, with respect to each Service Offering, the date Itron makes access credentials for the Service Offering available to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A to this Agreement.
Services mean the Service Offering(s) and Maintenance Services.
Software means Mobile Device Software and SaaS Software.
Subscription Fees means annual fees identified in the applicable Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron, for each Service Offering, plus the Annual Adjustment, if any.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
Territory means the country in which Itron provides Services and/or Equipment to Customer.
Third-Party Equipment means equipment listed on a Purchase Order for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
2. Purchase Order Requirement. Customer shall purchase Services and any Equipment by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific Services and Equipment, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
3. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year following the Effective Date. Thereafter, the term of this Agreement will automatically renew for successive one-year periods, unless either Party provides the other with written notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal period. Any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This Section is subject to Section 15 (“Termination”) of this Agreement.
4. Fees, Invoicing, Taxes and Payment.
4.1. Fees. Initial fees for Services and Equipment are set forth in the Quote or, if no Quote, Itron’s then-current list price at the time of Purchase Order acceptance by Itron. If the Territory is the United States, Customer will issue its Purchase Order to Itron, Inc. and pay Fees to such entity in USD. If the Territory is Canada, Customer will issue its Purchase Order to Itron Canada, Inc. and pay Fees to such entity in CAD.
4.2. Invoicing.
4.2.1. Customer shall pay Subscription Fees in advance for each Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. During deployment, Itron will invoice Subscription Fees quarterly beginning on the Effective Date and each subsequent period of three months. Beginning on the anniversary of the Effective Date immediately following completion of deployment Itron will invoice Subscription Fees annually in advance. Deployment is considered complete when Customer installs the quantity of devices specified in an applicable purchase Order or pricing document.
4.2.2. Equipment. Itron will invoice Customer for Equipment and related shipping costs on or after the date of shipment.
4.2.3. Maintenance Services. Fees for Software Maintenance Services are included in the Subscription Fee for the applicable Service Offering. As compensation for Maintenance Services for Equipment, Customer shall, in advance, pay Equipment Maintenance Fees for each Billing Cycle in which it receives such Maintenance Services. Itron shall invoice Customer for Equipment Maintenance Services to be provided during the first Billing Cycle as soon as practicable following the M&S Commencement Date. For Equipment Maintenance Services provided during any subsequent Billing Cycle, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Billing Cycle. Customer may discontinue Maintenance Services for any Covered Itron Equipment or Covered Third-Party Equipment by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Billing Cycle, Itron shall provide Customer with an invoice for Equipment Maintenance Fees payable by Customer for the forthcoming Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for Covered Itron Equipment or Covered Third-Party that is added during any Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Billing Cycle. The Equipment Maintenance Fee for any partial Billing Cycle (i.e., for Covered Itron Equipment or Covered Third-Party Equipment with a M&S Commencement Date falls after the beginning of the Billing Cycle) shall be prorated based on the applicable M&S Commencement Date and the remaining number of months Customer is to receive Maintenance Services during the Billing Cycle.
4.3. Payment. Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made by electronic transfer to a bank account designated by Itron.
4.4. Invoice Disputes. Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 4.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 18 (“Disputes”). Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
4.5. Late Payment. Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any Services and/or delivery of any Equipment if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
4.6. No Setoff. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Itron, whether relating to Itron's breach, bankruptcy, or otherwise.
4.7. Taxes. All prices are exclusive of any taxes, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. Customer shall pay any taxes related to products and services provided pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present an exception certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement. Customer will reimburse Itron for sales and use tax liability assessed against Itron but rightfully owed by Customer arising from or related to transactions set forth herein.
5. Documentation. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited right to access and use the Documentation with the Services and Equipment for its internal business purposes in the Territory. Itron will make its standard Documentation available via download. Itron will provide Customer with download instructions.
6. Service Offerings
6.1. Access Rights and Restrictions.
6.1.1. Access Rights. Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, non-transferable, non-assignable, limited right to access and use the Service Offering(s) for its internal business purposes in the Territory.
6.1.2. Restrictions on Use. Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
6.1.3. Content Restrictions. Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
6.2. Breach of Restrictions. Customer’s breach of the restrictions set forth in Section 6.1.2 (“Restrictions on Use”) or Section 6.1.3 (“Content Restrictions) shall constitute a material breach of this Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Agreement with respect to the Service Offerings. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.3. SaaS Software Availability. Itron will endeavor to make the SaaS Software available to Customer through the Service Offering(s) purchased by Customer at least 99.5% of the time, excluding any downtime resulting from maintenance or circumstances beyond Itron’s reasonable control.
6.4. Third-Party Radio Devices. Customer may use a Service Offering to collect Customer Data from Endpoints equipped with radio communication devices not manufactured or provided by Itron (“Third-Party Radio Device”). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. Without limiting the foregoing, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread Endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
6.5. Sizing of Software-as-a-Service. Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a written agreement of the Parties and may result in a change in Subscription Fees.
6.6. Application Upgrade and Fixes. SaaS Software is updated regularly using a continuous delivery method.
6.7. Conditions on Use of Service. Customer will use of the Service Offerings only in accordance with the Documentation, this Agreement, and applicable laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
6.8. Suspension or Restriction of Service. Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 6.1.2 (“Restrictions on Use”), Section 6.1.3 (“Content Restrictions”) or Section 6.7 (“Conditions on Use of Service”), until such breach is cured to Itron’s reasonable satisfaction.
6.9. Incident Management. Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers.
6.10. Customer Technical Responsibilities. Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
6.11. User IDs and Passwords. Itron shall provide Customer with a user identification and password (“User ID”) to access each Service Offering. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to or created by Customer. User IDs may not be shared or used by more than one user.
6.12. Maintenance. System maintenance, whenever reasonably practicable, will be performed during off-business hours based on the regions covered by the Service Offering. Itron will minimize Service Offering disruptions to the extent reasonably practical.
6.13. Business Continuity. Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
6.14. Recovery of Customer Data. Prior to the end of the Subscription Term, or earlier termination of this Agreement or applicable Order Document, (the “Recovery Request Deadline”) Customer may request to Itron in writing to recover system data relating to this Service Offering (“Recovery Request”). Provided that Itron has received the Recovery Request from Customer prior to the Recovery Request Deadline, Itron will maintain Customer's access to this Service Offering for a period of three (3) months from Recovery Request Deadline (the “Recovery Period”), for the sole purpose of enabling Customer to retrieve the following system data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by this Service Offering, or the format already supported by this Service Offering. At the end of the Recovery Period, the system data will be permanently deleted and will no longer be recoverable. Notwithstanding the foregoing, if Customer fails to pay undisputed amounts due, Itron will have no obligation to maintain system data or Customer’s access to this Service Offering following the Recovery Request Deadline. Itron may restore system data (if recoverable) and reinstate Customer’s access to this Service Offering upon payment of Itron’s then current reinstatement fee.
7. Mobile Device Software License.
7.1. License Grant. Subject to the terms of this Agreement, Itron grants Company a limited, non-exclusive, and non-transferrable license to download, install, and use the Mobile Device Software on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation.
7.2. License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason.
7.3. Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
7.4. Compatible Mobile Devices. Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
7.5. Disclaimer of Liability. Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
8. Equipment
8.1. Ordering, Lead Time & Ship Date. Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
8.2. Order Cancellation & Rescheduling. Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
8.3. Shipment, Title & Risk of Loss. For shipments within the United States, Itron will ship Equipment FOB Origin, production facility. Customer must pay for all costs associated with delivery of Equipment to the final destination. Title and risk of loss of Equipment will pass to Customer upon tender to the carrier at the production facility. For shipments outside the United States, Itron will ship Equipment FCA Origin (Incoterms 2020). Equipment will be delivered export cleared to Customer at the production facility. Customer will act as the Importer of Record (IOR) for Equipment and assumes all costs associated with delivery of Equipment to the final destination, including transportation after delivery to carrier and any licensing, certifications, permits, customs fees, import/local taxes, provincial/national tax, and value added tax related to importation of Equipment. Itron will provide all necessary information required for Customer to import Equipment. Title to and risk of loss for Equipment passes to Customer upon tender to the carrier at the production facility.
8.4. Itron Equipment Warranty. Itron warrants solely to Customer that Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications for one (1) year following the original shipment date. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer.
8.5. Itron Equipment Warranty Exclusions. The above warranty does not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
8.6. Third-Party Equipment Warranty. Itron is not the manufacturer of the Third-Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third-Party Equipment manufacturer. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third-Party Equipment manufacturer.
9. Maintenance Services
9.1. Primary Services Contacts.
9.1.1. Designation by Customer. Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel.
9.1.2. Training of Principal Services Contacts. Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
9.2. Global Support Services & Service Requests.
9.2.1. Global Support Services. Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products. Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services. Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
9.2.2. Service Request Process. Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A to this Agreement. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical.
9.2.3. Field Support. At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
9.3. Software Maintenance
9.3.1. Fixes. Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
9.3.2. Improvements. Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements created as new add-on modules/features and not part of the products original specifications, will be created at Itron’s discretion and will be billable at Itron’s then current rates. Access to new add-on modules may also require additional licensing and subscription fees.
9.3.3. Exclusions. Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Software adversely affected by (i) use of Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Software; (ii) failure to perform customer responsibilities describe in this Agreement, (iii) viruses introduced through no fault of Itron.
9.3.4. Customer Responsibilities. Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
9.4. Equipment Maintenance.
9.4.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Itron Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Itron Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Itron Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
9.4.2. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for Covered Itron Equipment by delivering the Covered Itron Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Itron Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Itron Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Itron Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Itron Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below.
9.4.3. Exclusions. Covered Itron Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Itron Equipment in accordance with applicable Documentation.
9.4.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
9.4.5. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Covered Itron Equipment purchased by Customer, of a similar type and model already covered under this Agreement, shall automatically be deemed to be Covered Itron Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Itron Equipment and thereafter wishes to add or restore such equipment as Covered Itron Equipment, Itron may, prior to such equipment being included as Covered Itron Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Equipment Maintenance Fees for the then-current Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Itron Equipment under this section.
9.4.6. Equipment Responsibilities. Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Itron Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Itron Equipment serial numbers and locations to assist Itron with performing Maintenance Services.
9.4.7. Support for Third Party Equipment. Itron shall provide first tier Global Support Services for Third Party Covered Equipment by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Equipment consistent with the third-party maintenance terms made available to Customer by Itron. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Equipment shall be as set forth in this section.
9.5. End of Support. Itron may discontinue Maintenance Services for any Covered Itron Equipment, effective as of the end of the applicable Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Billing Cycle. The end of support date for a Covered Third-Party Equipment shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt. If the end of support date is scheduled within a subsequent Billing Cycle, Equipment Maintenance Fees for that subsequent Billing Cycle will be pro-rated through the end of support date. At Customer’s request, Itron may elect to provide custom support for Equipment for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Equipment for which Itron has discontinued Maintenance Services. Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
10.Warranty Disclaimer. EXCEPT FOR THE LIMITED ITRON EQUIPMENT WARRANTIES SET FORTH IN SECTION 8.4 (“ITRON EQUIPMENT WARRANTY), ITRON MAKES NO WARRANTY OF ANY KIND RELATING TO SERVICES AND EQUIPMENT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT SERVICES OR EQUIPMENT WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE. ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES, OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
11. Intellectual Property.
11.1. Reservation of Intellectual Property. Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved.
11.2. Customer Suggestions. Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
12. Third-Party Claims.
12.1. General Claims. The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
12.2. Infringement Claims. Itron, as the Defending Party, will defend Customer, as the Defended Party, from and against Claims alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory (“IP Claims”). Itron will also indemnify Customer for settlements approved by Itron and final judgments entered against Customer to the extent resulting from IP Claims. If Itron receives notice of an alleged infringement by any products or services provided to Customer under this Agreement, or if Itron reasonably believes that an IP Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
12.3. Conditions to Defense. As a condition to the Defending Party’s obligations under Section 12.1 or Section 12.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
12.4. Exclusions to Infringement Claim Defense. Itron will have no obligation under Section 12.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
12.5. EXCLUSIVE REMEDY. THIS SECTION 12 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER.
13. Data Protection. The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized, developing new products and services. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party.
14. Confidentiality. Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement.
15. Termination. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the non-breaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement.
16. Survival. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (“Definitions”), 3 (“Term”), 4 (“Fees, Invoicing, Taxes and Payment”), 10 (“Warranty Disclaimer”), 11 (“Intellectual Property”), 14 (“Confidentiality”), 16 (“Survival”), 17 (“Limitation of Liability”), 18 (“Disputes”), 19 (“Governing Law”), and 25 ("Miscellaneous").
17. Limitation of Liability. Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
18. Disputes. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may initiate legal proceedings in a court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
19. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the jurisdiction where Customer's primary business address is located, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
20. Legal Compliance. Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties. Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement.
21. Publicity. Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties will create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
22. Sub-contractor and Outsourcer. Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement.
23. Independent Contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation.
24. Force Majeure. Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure").
25. Miscellaneous. (a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (d) This Agreement is not made for the benefit of any third parties. (e) All notices under this Agreement must be sent to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (f) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void.
26. AMI Essentials Use Restrictions.
26.1. Limitations. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
26.1.1. Conventional AMI Use Cases. Unless otherwise approved in writing by Itron in accordance with Section 26.1.2 below, Customer will use AMI Essentials (Water & Gas) only for the following conventional AMI use cases: (a) up to four reads per day of the following available read types: no more than twice daily retrieval of interval data, daily reading of meter registers, on-demand reads, meter pings, and (b) up to five Firmware upgrades for the life of the Endpoint. Usage beyond conventional use cases could result in premature battery failure.
26.1.2. New Use Cases. If Customer requests additional use cases, Itron or its designee will review any request for new use cases, study the impact on network capacity and functionality and render a decision within 90 days of the request. Itron reserves the right to charge additional fees for any new use cases.
27. Service Levels.
This Section 27 sets forth the read rate service levels for AMI Essentials (Water & Gas). The read rate service level commitments are outlined below and are contingent upon Customer’s purchase of (and ongoing right to receive) AMI Essentials (Water & Gas) in accordance with this Agreement. The service level commitments do not apply to pilot deployments of AMI Essentials (Water & Gas).
27.1. Service Level Definitions. Customer’s use of AMI Essentials (Water & Gas) shall be permitted as follows:
Available Endpoint is an Endpoint that meets the following criteria: (a) the Endpoint has been properly installed according to Itron installation instructions; (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform; (c) the Endpoint is communicating with Itron’s data collection platform and a register read has been received from the Endpoint for three (3) consecutive days; (d) adequate cellular coverage signal quality is measured, as defined by applicable product specifications; (e) cellular coverage is not affected by temporary or permanent obstructions or other conditions outside of Itron’s control; (f) Customer operates and maintains the Endpoint according to Itron’s published policies and procedures; (g) the solution has been optimized as part of the deployment process, including read times to support optimal performance and avoid network congestion; (h) there are no wireless carrier interruptions or gaps in cellular coverage. An Endpoint will not be considered an Available Endpoint under any of these conditions: (a) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, or (b) the Endpoint is under field investigation.
Billing Read Rate means the percentage of Available Endpoints from which register read data has been collected over a rolling 3-day period, measured for each calendar day.
27.2. Service Level Report. Itron will deliver a monthly service level report that identifies performance against service levels. If Itron does not meet a service level, the report will give the reason the service level was not achieved and describe the corrective actions taken.
27.3. Service Level Commitment. Provided Customer has paid all SaaS Subscription Fees, the average monthly read rates of Available Endpoints during the Subscription Term of this Service Offering will meet or exceed the service level commitments as set forth in the table below. Itron records and data will be the sole basis for all Billing Read Rate measurements and calculations.
Service Deliverable | Monthly Service Level | Service Level Credit (% of monthly Subscription Fee for applicable Service Offering) |
3-Day Billing Read Rate | >98% | 0% |
96% - 98% | 4% | |
94% - 96% | 10% | |
< 94% | 20% |
Attachment A
– Software Maintenance & Support Service Levels –
Severity Level | Response Times | Effort Level and Restoration | Escalation |
Business Impact: Critical Impact / System Down. A Production System Error for which there is no work-around, which causes Software or a critical business function / process of said product to be unavailable such that system operation cannot continue. Example: a) Billing cannot be completed, b) Major documented function not working, c) System hung or completely down
| During regular business-hours Itron will begin the Service Request process during Customer’s initial call. During after-hour periods, Itron will respond to a critical support voice messages within 15 minutes by a return call to Customer, to validate receipt of the critical support call and begin the Service Request process. Following the start of the Service Request process Itron will respond to Customer’s Service Request within two (2) business hours with an investigation response. Itron will update Customer at three (3) hour intervals during each day the Service Request remains unresolved, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three (3) hours. | Itron will make diligent efforts on a 24x7 basis, or as otherwise agreed by the Parties, to: i) restore Software with a change to eliminate root cause, ii) provide a workaround which restores Software and downgrades the Severity Level to S2, S3, S4. Customer Support Staff must be available 24x7 to work cooperatively with Itron continuously until such time restoration is achieved.
| An unresolved Service Request shall be escalated to Itron management as follows: After 30 minutes: After 8 hours: After 16 hours: After 48 hours: After 72 hours:
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Severity Level 2* Business Impact:Major impact, degraded Operation. An Error other than a Severity Level 1 Error, for which there is no work-around, which degrades or limits operation of major system functions causing Software to miss required business interface or deadlines. Software remains available for operation but in a highly restricted fashion. Example: a) Billing cannot be completed on time, b) Major function is operating outside documented timing / term, c) Software operating slow, missing data, data delivery, daily mission.
| During regular business-hours Itron will respond to Customer regarding Service Request within one (1) business day. While Service Request remains unresolved, Itron will update the Customer and the Service Request at least every other business day, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within one (1) business day. | Itron will make diligent efforts during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrade the Severity Level to S3, S4.
| An unresolved Service Request shall be escalated to Itron management as follows: After 1 hours: After 8 hours: After 24 hours: After 30 Days:
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Severity Level 3** Business Impact: Minor Business Impact, compromised operations. An Error other than a Severity Level 1 or Severity Level 2 Error that has moderate impact on use of or access, with low business impact, but not preventing Customer from performing daily activities. Example: The Service Request affects use by Software users, allowing Customer’s functions to continue to meet daily business needs. | During regular business-hours Itron will respond to Customer regarding Service Request within two (2) business days. While Service Request remains unresolved, Itron will update the Service Request weekly, or as otherwise agreed by the parties. Customer will respond to an Itron inquiry or request within two (2) business days. | Itron will work during normal business hours to: i) restore Software with a change to eliminate root cause, ii) a workaround which restores Software and downgrades the Severity Level to S4 |
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Severity Level 4 Business Impact: Standard Operations intact. A low or no-impact Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error, or a request for enhancement / new functionality Example: Generally, a cosmetic Error or an Error which does not degrade Customer’s use of the product or system. | During regular business-hours Itron will respond to Customer regarding Service Request within three (3) business days.
| Itron GSS Management Team will make commercially reasonable efforts during normal business hours to understand the Service Request and provide applicable recommendations as to when a Fix may be schedule in a future release, or how to proceed with a formal enhancement request to Itron’s product and delivery teams. |
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* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3.
** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.