HomeMy WebLinkAboutAgreement_General_11/14/2019_Sensus a xylem brandsEnsus
a xylem brand
Software as a Service and Spectrum Lease Agreement
between
Village of Tequesta
("Customer")
and
Sensus USA Inc.
("Sensus")
IN WITNESS WHEREOF, the parties have caused this Software as a Service and Spectrum Lease ("Agreement") to be
executed by their duly authorized representatives as of the day and year written below. The date of the last party to sign is the
"Effective Date."
This Agreement shall commence on the Effective Date and continue for/until: 5 Years ("Initial Term"). At the end of the Initial
Term, this Agreement shall automatically renew for an additional term of 5 years ("Renewal Term"). The "Term" shall refer to
both the Initial Term and the Renewal Term.
This Agreement contains two parts: Part (1) is The FCC Notification for Spectrum Manager Lease, to be filed with the FCC by
Sensus on behalf of the Customer and Part (2) is a Software as a Service and Spectrum Lease between Sensus and Customer.
Together, these two parts create the Agreement.
Sensus USA Inc. ��-- ))��
�/ZX.47 ,
By: Tim Harriger (Nov 13, 2019)
Name: Tim Harriger
Title: VP Sales NA Water
Date: NOV 13, 2019
Contents of this Agreement:
Part 1: Notification for Spectrum Manager Lease
Part 2: Agreement
Exhibit A Software
Exhibit B Technical Support
Customer: Village of Tequesta
By:
Name: �p�141
3 i
Title: Mu ov
Date: ',-1a—1,q
Confidential I Page 1 of 15
Part 1: Notification for Spectrum Manager Lease
In order for Sensus to apply to the FCC on the Customers behalf for a spectrum manager lease, Customer must complete the information below in boxes one (1) through
ten (10) and certify via authorized signature. Customers signature will indicate that Customer authorizes Sensus to file the spectrum manager lease notification on FCC
Form 608 with the Customer as spectrum Lessee, and if Customer does not already have one, ownership disclosure information on FCC Form 602.
Customer/Lessee Name: Village of Teguesta
Attention To: Matthew Hammond,
Name of Real Party in Interest:
Street Address: 345 Tequesta Dr
City: Tequesta
State: Florida
Zip: 33469
Phone: 561-768-0459
Fax:
Email:
mhammond@tequesta.org
Is Customer contact information same as above? X❑Yes ❑No (If No, complete box 2 below)
2.
Additional Customer/Lessee Contact Information
Company Name:
Attention To:
Street Address:
City.
State:
Zip:
Phone:
Fax:
Email:
Customer/Lessee is a(n) (Select one): ❑ Individual I ❑ Unincorporated Association I []Trust
X Government Entity I []Corporation I ❑ Limited Liability Company I ❑General Partnership
❑Limited Partnership I ❑Limited Liability Partnership I ❑Consortium I ❑ Other
FCC Form 602: FCC File Number of Customers Form 602 Ownership Information: . If Customer has not filed a Form 602, Sensus will file one for
Customer. Please complete questions 5, 6, and 7 below if Customer does not have a Form 602 on file.
Customer must complete items 8, 9 and 10 irrespective of whether Customer has an ownership report on file.
Customer Tax ID:
6.
Individual Contact For FCC Matters
Please designate one individual (the Director of Public Works or similar person) who is responsible to the FCC for the operation of the FlexNet radio system.
Name Matthew Hammond
Title: Utility Director
Email: mhammond@tequesta.org
Phone: 561-768-0459
Ownership Disclosure Information
If Customer/Lessee is a government entity, list the names of the Mayor and all Council Members below, as well as verify citizenship and ownership interests in
any entity regulated by the FCC. Such ownership must be disclosed where a mayor/council member owns 10% or more, directly or indirectly, or has operating
control of any entity subject to FCC regulation. If any answer to Ownership question is Yes, or any answer to Citizenship question is No, provide an attachment
with further explanation.
US Citizen?
Ownership Disclosure?
Mayor: Abigail Brennan
XYes ❑No
❑Yes El No
Council Member: Vince Arena
XYes ❑No
❑Yes ❑No
Council Member: Laurie Brandon
X Yes []No
[]Yes ❑No
Council Member: Kyle Stone
XYes El No
[-]Yes ❑No
Confidential I Page 2 of 15
Council Member: Kristi Johnson
❑Yes
❑No
❑Yes
❑No
Council Member:
❑Yes
❑No
[]Yes
[]No
Council Member:
❑Yes
❑No
❑Yes
END
Council Member:
❑Yes
❑No
❑Yes
[]No
Council Member:
❑Yes
❑No
❑Yes
❑No
Council Member:
❑Yes
❑No
❑Yes
ONO
Alien Ownership Questions (if the answer is Yes, provide an attachment explaining the circumstances)
1 Is the Customer/Lessee a foreign government or the representative of any foreigngovernment? ❑Yes X No
9.
Basic Qualification Information
1) Has the Customer or any party to this application had any FCC station authorization, license, or construction permit
revoked or had any application for an initial, modification or renewal of FCC station authorization, license or construction
[]Yes X No
permit denied by the Commission?
2) Has the Customer or any party to this filing, or any party directly or indirectly controlling the Customer or any party to
❑Yes X No
this filingever been convicted of a felon b an state or federal court?
3) Has any court finally adjudged the Customer or any party directly or indirectly controlling the Customer guilty of
unlawfully monopolizing or attempting to unlawfully monopolize radio communication, directly or indirectly, through control
❑Yes X No
of manufacture or sale of radio apparatus, exclusive traffic arrangement, or any other means or unfair methods of
competition?
10.
Customer/Lessee Certification Statements
1) The Customer/Lessee agrees that the Lease is not a sale or transfer of the license itself.
X Yes
2) The Customer/Lessee acknowledges that it is required to comply with the Commission's Rules and Regulations and
other applicable law at all times, and if the Customer/Lessee fails to so comply, the Lease may be revoked, cancelled, or
X Yes
terminated by either the Licensee or the Commission.
3) The Customer/Lessee certifies that neither it nor any other party to the Application/Notification is subject to a denial of
Federal benefits pursuant to Section 5301 of the Anti -Drug Abuse Act of 1988, 21 U.S.0 § 862, because of a conviction for
X Yes
possession or distribution of a controlled substance (See Section 1.2002(b) of the rules, 47 CFR § 1.2002(b), for the
definition of party to the application' as used in this certification.)
4) The Customer/Lessee hereby accepts Commission oversight and enforcement consistent with the license and lease
authorization. The Lessee acknowledges that it must cooperate fully with any investigation or inquiry conducted either by
the Commission or the Licensee, allow the Commission or the Licensee to conduct on -site inspections of transmission
X Yes
facilities, and suspend operations at the direction of the Commission or the Licensee and to the extent that such
suspension of operation would be consistent with applicable Commission policies.
5) The Customer/Lessee acknowledges that in the event an authorization held by a Licensee that has associated with it a
spectrum leasing arrangement that is the subject of this filing is revoked, cancelled, terminated, or otherwise ceases to be
in effect, the Customer/Lessee will have no continuing authority to use the leased spectrum and will be required to
X Yes
terminate its operations no later than the date on which the Licensee ceases to have any authority to operate under the
license, unless otherwise authorized by the Commission.
6) The Customer/Lessee agrees the Lease shall not be assigned to any entity that is not eligible or qualified to enter into a
X Yes
spectrum leasingarrangement under the Commission's Rules and Regulations.
7)The Customer/Lessee waives any claim to the use of any particular frequency or of the electromagnetic spectrum as
against the regulatory power of the United States because of the previous use of the same, whether by spectrum lease or
X Yes
otherwise.
8) The Customer/Lessee certifies that it is not in default on any payment for Commission licenses and that it is not
delinquent on an non -tax debt owed to an federal agency.
X Yes
The Customer/Lessee certifies that all of its statements made in this Application/Notification and in the schedules, exhibits, attachments, or
documents incorporated by reference are material, are part of this Application/Notification, and are true, complete, correct, and made in good faith.
The Customer/Lessee shall notify Sensus in writing in the event any information supplied on this form changes.
Village of Tequesta
By.
Title:
%
Name:
``
Date:
; n
FAILURE TO SIGN THIS APPLICATION MAY RESULT IN DISMISSAL OF THE APPLICATION AND FORFEITURIJIOF ANY FEES PAID.
WILLFUL FALSE STATEMENTS MADE ON THIS FORM OR ANY ATTACHMENTS ARE PUNISHABLE BY FINE AND/OR IMPRISONMENT (U.S. Code, Title 18, Section 1001) AND/OR
REVOCATION OF ANY STATION LICENSE OR CONSTRUCTION PERMIT (U.S. Code, Title 47, Section 312(a)(1)) AND/OR FORFEITURE (U.S. Code Title 47, Section 503).
Confidential I Page 3 of 15
Part 1: Agreement
General
A. Agreement Generally. The scope of this Agreement includes usage terms for Sensus' hosted Software solution, leased spectrum, technical support, and
supporting terms and conditions for an advanced metering infrastructure solution that Customer will purchase from Sensus' authorized distributor. Customer is
not paying Sensus directly for the services provided by Sensus under the Agreement; rather, Customer shall pay Sensus' authorized distributor pursuant to a
separate agreement between Customer and such authorized distributor.
Software.
A. Software as a Service (SaaS). Sensus shall provide Customer with Software as a Service, as defined in Exhibit A, only so long as Customer is current in its
payments for such services.
B. UCITA. To the maximum extent permitted by law, the Parties agree that the Uniform Computer Information Transaction Act as enacted by any state shall not
apply, in whole or in part, to this Agreement.
3. Spectrum
A. Definitions in this Section 3. In this Section 3 only, "Sensus" shall mean Sensus USA Inc. and its wholly owned subsidiary, Sensus Spectrum LLC.
B, Spectrum Lease. Sensus hereby grants to Customer, and Customer accepts, a spectrum manager lease ("Spectrum Lease") over the frequencies of certain
FCC license(s) ("FCC License") solely within Customer's Service Territory. (The frequencies of the FCC License within Customer's geographic Service Territory
are called the "Leased Spectrum"). Customer shall pay the Ongoing Fees for use of the Leased Spectrum.
C FCC Forms. At the Federal Communications Commission ("FCC"), Sensus will; (1) obtain an FCC Registration Number ("FRN")) for Customer; (2) submit on
behalf of Customer the FCC Form 602 Ownership Disclosure Information if Customer has not already done so; and (3) file a FCC Form 608,
notification/application for long-term spectrum manager lease. This Lease becomes effective when the FCC accepts the FCC Form 608.
D. Lease Application. In order to complete the FCC lease application, Customer will promptly:
i. Complete and sign the representations in Part 1 of this Agreement such that Customer demonstrates it qualifies for a spectrum lease under FCC
rules. Customer's signature will indicate that Customer authorizes Sensus to; (1) obtain an FRN on behalf of Customer; (2) submit the FCC Form
602 Ownership Disclosure Information on behalf of Customer if Customer has not already done so; and (3) file the spectrum manager lease
notification on FCC Form 608 with the Customer as spectrum lessee.
ii. Give Sensus the coordinates of the boundaries of Customer's Service Territory or, alternatively, approve Sensus' estimation of the same.
iii. If Customer has not already done so; Customer hereby authorizes Sensus to apply on Customer's behalf and obtain for Customer a Federal
Registration Number (FRN, the FCC's unique identifier for each licensee) and shall supply Sensus with Customer's Taxpayer Identification Number
("TIN").
V. Provide any other information or other cooperation reasonably necessary for the Parties to perform as set forth herein.
E. Permitted Use of Spectrum Lease and Equipment. Customer may transmit or receive over the Leased Spectrum only in the Service Territory and only using
FlexNet equipment manufactured by Sensus and used in accordance with Sensus' specifications. Customer may use the Leased Spectrum only to read and
direct Field Devices or any other operation approved by Sensus in writing. Without limiting the foregoing, Customer is prohibited from reselling, subleasing or
sublicensing the FlexNet Equipment and Leased Spectrum, and from transmitting voice communications over the Leased Spectrum. For each piece of RF Field
Equipment used by Customer, Customer shall affix a Sensus-supplied label to the exterior of the RF Field Equipment cabinet or other appropriate visible place
to indicate that RF operation is conducted under authority of FCC License(s) issued to Sensus.
F. FCC Forms. At the Federal Communications Commission (FCC), Sensus will; (1) obtain an FCC Registration Number (FRN) for Customer; (2) submit on behalf
of Customer the FCC Form 602 Ownership Disclosure Information if Customer has not already done so; and (3) file a FCC Form 608, notification/application for
long-term spectrum manager lease. This Lease becomes effective when the FCC accepts the FCC Form 608,
G. Term of Spectrum Lease. Unless terminated earlier (because, for example, Customer stops using the FlexNet equipment or because this Agreement terminates
or expires for any reason), this Spectrum Lease will have the same term as the FCC license. If Customer is operating in compliance with this Agreement and is
current on any payments owed to Sensus, when the FCC License renews, the Parties will apply to the FCC to renew this Spectrum Lease.
K Termination of Spectrum Lease. The Spectrum Lease will terminate: (a) two months after Customer stops transmitting with FlexNet equipment manufactured
by Sensus; (b) upon termination, revocation or expiration of the FCC License; (c) upon Customer's breach of this Agreement; or (d) upon termination or expiration
of this Agreement for any reason.
I. FCC Compliance. The following FCC requirements apply
i. Pursuant to 47 CFR 1.9040(a);
a. Customer must comply at all times with applicable FCC rules. This Agreement may be revoked by Sensus or the FCC if Customer fails to so
comply;
b. If the FCC License is terminated, Customer has no continuing right to use the Leased Spectrum unless otherwise authorized by the FCC;
C. This Agreement is not an assignment, sale or other transfer of the FCC License;
d. This Agreement may not be assigned except upon written consent of Sensus, which consent may be withheld in its discretion; and
e. In any event, Sensus will not consent to an assignment that does not satisfy FCC rules.
ii. Referencing 47 CFR 1,9010, Sensus retains de jure and de facto control over the applicable radio facilities, including that,
a. Sensus will be responsible for Customers compliance with FCC policies and rules. Sensus represents and warrants that it has engineered
the FlexNet equipment and accompanying software and other programs to comply with FCC rules. Customer will operate the FlexNet
equipment subject to Sensus' supervision and control and solely in accordance with Sensus' specifications. Sensus retains the right to inspect
Customers radio operations hereunder and to terminate this Agreement or take any other necessary steps to resolve a violation of FCC rules,
including to order Customer to cease transmission. Sensus will act as spectrum manager in assigning spectrum under the FCC License so
as to avoid any harmful interference or other violation of FCC rules. Sensus will be responsible for resolving any interference complaints or
other FCC rule violations that may arise; and
b. Sensus will file any necessary FCC forms or applications and Customer agrees to reasonably assist Sensus with such filing by providing any
necessary information or other cooperation. Sensus will otherwise interact with the FCC with respect to this Agreement, the FCC License or
FlexNet equipment.
iii. Customer must continue operations on the spectrum during the Term of this Agreement. If Customer stops operations for any period of time, Customer
must notify Sensus by sending an email to legal@xyleminc.com. Customer may not pause or discontinue operations for more than 180 days.
J. Interference. Customer agrees to report to Sensus promptly, and in no event later than 72 hours afterward, any incident related to the Leased Spectrum,
including where Customer experiences harmful interference, receives a complaint or other notice of having caused harmful interference, or receives any type of
communication from the FCC or other government agency regarding radio transmission.
Confidential I Page 4 of 15
4. Equipment.
A. Purchase of Equipment Customer shall purchase all Field Devices, RF Field Equipment, and other goods (collectively, "Equipment') from Sensus' authorized
distributor pursuant to the terms and conditions (including any warranties on such Equipment) agreed by Customer and Sensus' authorized distributor. This
Agreement shall not affect any terms and conditions, including any warranty terms, agreed by Customer and Sensus' authorized distributor. If Customer elects
to purchase any equipment or services directly from Sensus, or if Customer pays any fees or other costs to Sensus, then Sensus' Terms of Sale shall apply.
The "Terms of Sale" are available at: hftps:/Iwww.sensus.com/tc or 1-800-METER-IT
B. THERE ARE NO WARRANTIES IN THIS AGREEMENT, EXPRESS OR IMPLIED. SENSUS EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS,
WARRANTIES AND/OR CONDITIONS, EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, REGARDING ANY MATTER IN CONNECTION WITH THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION, WARRANTIES AS TO FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON -
INFRINGEMENT AND TITLE.
5. Services.
A. Installation of Equipment. Installation services for Field Devices, other goods, and RF Field Equipment will be as agreed between the Customer and Sensus'
authorized distributor. Sensus will not provide installation services pursuant to this Agreement
B. Technical Support. Sensus shall provide Customer the technical support set forth in Exhibit B.
C. Project Management. Sensus' authorized distributor will provide project management services to Customer. Any project management of the FlexNet System
provided by Sensus shall be subject to a separate agreement which describes the scope and pricing for such work.
D. Training. Sensus' authorized distributor will provide Customer with training on the use of the FlexNet System. Any training provided by Sensus shall be subject
to a separate agreement which describes the scope and pricing for such work.
E. IT Systems Integration Services. Except as may otherwise be provided herein, integration of the Software into Customer's new or existing internal IT systems
is not included in this Agreement. Any integration work shall be subject to a separate agreement which describes the scope and pricing for such work.
6. General Terms and Conditions.
A. Infringement Indemnity. Sensus shall indemnify and hold harmless Customer from and against any judgment by a court of competent jurisdiction or settlement
reached from any litigation instituted against Customer in the United States by a third party which alleges that the FlexNet System provided hereunder infringes
upon the patents or copyrights of such third party, provided that Sensus shall have the right to select counsel in such proceedings and control such proceedings.
Notwithstanding the foregoing, Sensus shall have no liability under this indemnity unless Customer cooperates with and assists Sensus in any such proceedings
and gives Sensus written notice of any claim hereunder within fourteen (14) days of receiving it. Further, Sensus shall have no liability hereunder if such claim
is related to; (i) any change, modification or alteration made to the FlexNet System by Customer or a third party, (ii) use of the FlexNet System in combination
with any goods or services not provided by Sensus hereunder, (iii) Customer's failure to use the most recent version of the Software or to otherwise take any
corrective action as reasonably directed by Sensus, (iv) compliance by Sensus with any designs, specifications or instructions provided by Customer or
compliance by Sensus with an industry standard, or (v) any use of the FlexNet System other than for the Permitted Use. In the event the FlexNet System is
adjudicated to infringe a patent or copyright of a third party and its use is enjoined, or, if in the reasonable opinion of Sensus, the FlexNet System is likely to
become the subject of an infringement claim, Sensus, at its sole discretion and expense, may; (i) procure for Customer the right to continue using the FlexNet
System or (ii) modify or replace the FlexNet System so that it becomes non -infringing. THIS SECTION STATES CUSTOMER'S SOLE AND EXCLUSIVE
REMEDY AND SENSUS' ENTIRE LIABILITY FOR ANY CLAIM OF INFRINGEMENT.
B. Limitation of Liability. Sensus' aggregate liability in any and all causes of action arising under, out of or in relation to this Agreement, its negotiation,
performance, breach or termination (collectively "Causes of Action") shall not exceed the greater of, (a) the total amount paid by Customer directly to Sensus
under this Agreement; or (b) ten thousand US dollars (USD 10,000.00). This is so whetherthe Causes of Action are in tort, including, without limitation, negligence
or strict liability, in contract, under statute or otherwise. As separate and independent limitations on liability, Sensus' liability shall be limited to direct damages.
Sensus shall not be liable for, (i) any indirect, incidental, special or consequential damages; nor (ii) any revenue or profits lost by Customer or its Affiliates from
any End User(s), irrespective whether such lost revenue or profits is categorized as direct damages or otherwise; nor (iii) any In/Out Costs; nor (v) damages
arising from maincase or bottom plate breakage caused by freezing temperatures, water hammer conditions, or excessive water pressure. The limitations on
liability set forth in this Agreement are fundamental inducements to Sensus entering into this Agreement. They apply unconditionally and in all respects. They
are to be interpreted broadly so as to give Sensus the maximum protection permitted under law.
C. Termination. Either party may terminate this Agreement earlier if the other party commits a material breach of this Agreement and such material breach is not
cured within forty-five (45) days of written notice by the other party. Upon any expiration or termination of this Agreement, Sensus' and Customer's obligations
hereunder shall cease and the software as a service and Spectrum Lease shall immediately cease.
Force Majeure. If either party becomes unable, either wholly or in part, by an event of Force Majeure, to fulfill its obligations under this Agreement, the obligations
affected by the event of Force Majeure will be suspended during the continuance of that inability. The party affected by the force majeure will take reasonable
steps to mitigate the Force Majeure.
Intellectual Property Rights.
I. Software and Materials. No Intellectual Property is assigned to Customer hereunder. Excluding Customer Data, Sensus shall own or continue to own all
right, title, and interest in and to the Intellectual Property associated with the Software and related documentation, including any derivations and/or
derivative works (the "Sensus IP"). To the extent, if any, that any ownership interest in and to such Sensus IP does not automatically vest in Sensus by
virtue of this Agreement or otherwise, and instead vests in Customer, Customer agrees to grant and assign and hereby does grant and assign to Sensus
all right, title, and interest that Customer may have in and to such Sensus IP. Customer agrees not to reverse engineer any Sensus Products purchased
or provided hereunder.
ii. Customer Data. Notwithstanding the prior paragraph, as between Customer and Sensus, Customer remains the owner of all right, title or interest in or to
any Customer Data. "Customer Data" means solely usage data collected by the Field Devices. To avoid doubt, Customer Data does not include non -End
User usage data collected by the Field Devices, Software, or FlexNet System, such as network and equipment status information or the like.
iii. Consent to Use of Customer Data. Customer hereby irrevocably grants to Sensus a royalty -free, non-exclusive, irrevocable right and license to access,
store, and use such Customer Data and any other data or information provided to Sensus, to (1) provide the Service; (2) analyze and improve the Service;
(3) analyze and improve any Sensus equipment or software; or (4) for any other internal use. As used herein, "Service" means Sensus' obligations under
this Agreement.
iv. Access to Customer Data. Within 45 days of Customer's written request, Sensus will provide Customer a copy of the previous 24 months CMEP interval
file and deliver the file to a drop location specified by Customer.
Data Privacy. Customer acknowledges that Sensus and its Affiliates (collectively, "Xylem") will collect and process personal data for the purposes outlined in
this Agreement. Xylem's data privacy policy is available at https://www.xylem.com/en-us/supporUpdvacy/. Customer acknowledges that it has read and
Confidential I Page 5 of 15
understood Xylem's privacy policy and agrees to the use of personal data outlined therein. The collection and use of personal data by Customer is Customers
responsibility.
G. Confidentiality. Except as may be required under applicable law, court order, or regulation, or to the extent required to perform and enforce this Agreement,
both parties shall (and shall cause their employees and contractors to) keep all Confidential Information strictly confidential and shall not disclose it to any third
party. The Confidential Information may be transmitted orally, in writing, electronically or otherwise observed by either party. Notwithstanding the foregoing,
"Confidential Information" shall not include; (i) any information that is in the public domain other than due to Recipient's breach of this Agreement; (ii) any
information in the possession of the Recipient without restriction prior to disclosure by the Discloser, or (iii) any information independently developed by the
Recipient without reliance on the information disclosed hereunder by the Discloser. "Discloser" means either party that discloses Confidential Information, and
"Recipient" means either party that receives it.
H. Public Records. Pursuant to Section 119 0701, Florida Statutes, for any tasks performed by Sensus acting on behalf of the Village, Sensus shall (a) keep
and maintain all public records, as that term is defined in Chapter 119, Florida Statutes ("Public Records'), that ordinarily and necessarily would be required by
the Village in order to perform the work contemplated by this Agreement, (b) provide the public with access to Public Records, on the same terms and
conditions that the Village would provide the records and at a cost that does not exceed the costs provided in Chapter 119, Florida Statutes, or as otherwise
provided by law, (c) ensure that Public Records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed
except as authorized by law, (d) meet all requirements for retaining Public Records and transfer, at no cost, to the Village all public records in possession of
Sensus within thirty (30) days after termination of this Agreement, however terminated, and destroy any duplicate Public Records that are exempt or
confidential and exempt from public records disclosure requirements and provide the Village with a letter confirming that this has been done within thirty (30)
days of the termination of this Agreement. All Public Records stored electronically must be provided to the Village in a format that is compatible with the
information technology of the Village, If Sensus does not comply with a public records request, the Village may pursue any and all remedies available in law or
equity, including but not limited to specific Performance. The provisions of this section only apply to those tasks in which Sensus is acting on behalf the
Village. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, PLEASE CONTACT THE VILLAGE CLERK, RECORDS
CUSTODIAN FOR THE VILLAGE, AT (561) 768.0685, OR AT Imcwilliams(dteguesta.oru, OR AT 345 TEQUESTA DRIVE, TEQUESTA, FLORIDA 33469.
I. Compliance with Laws. Customer shall comply with all applicable country, federal, state, and local laws and regulations, as set forth at the time of acceptance
and as may be amended, changed, or supplemented. Customer shall not take any action, or permit the taking of any action by a third party, which may render
Sensus liable for a violation of applicable laws.
I. Export Control Laws. Customer shall; (i) comply with all applicable U.S. and local laws and regulations governing the use, export, import, re-export, and
transfer of products, technology, and services; and (ii) obtain all required authorizations, permits, and licenses. Customer shall immediately notify Sensus,
and immediately cease all activities with regards to the applicable transaction, if the Customer knows or has a reasonable suspicion that the equipment,
software, or services provided hereunder may be directed to countries in violation of any export control laws. By ordering equipment, software or services,
Customer certifies that it is not on any U.S. government export exclusion list.
ii. Anti -Corruption Laws. Customer shall comply with the United States Foreign Corrupt Practices Act (FCPA), 15 U.S.C. §§ 78dd-1, et seq.; laws and
regulations implementing the OECD's Convention on Combating Bribery of Foreign Public Officials in International Business Transactions; the U.N.
Convention Against Corruption; the Inter -American Convention Against Corruption; and any other applicable laws and regulations relating to anti -corruption
in the Customer's county or any country where performance of this Agreement, or delivery or use of equipment, software or services will occur.
J. Non -Waiver of Rights. A waiver by either party of any breach of this Agreement or the failure or delay of either party to enforce any of the articles or other
provisions of this Agreement will not in any way affect, limit or waive that party's right to enforce and compel strict compliance with the same or other articles or
provisions.
K. Assignment and Sub -contracting. Either party may assign, transfer or delegate this Agreement without requiring the other party's consent; (i) to an Affiliate;
(ii) as part of a merger, or (III) to a purchaser of all or substantially all of its assets, Apart from the foregoing, neither party may assign, transfer or delegate this
Agreement without the prior written consent of the other, which consent shall not be unreasonably withheld. Furthermore, Customer acknowledges Sensus
may use subcontractors to perform RF Field Equipment installation, the systems integration work (if applicable), or project management (if applicable), without
requiring Customer's consent.
L. Amendments. No alteration, amendment, or other modification shall be binding unless in writing and signed by both Customer and by a vice president (or
higher) of Sensus.
M. Inspector General. Pursuant to Article XII of the Palm Beach County Charter, the Office of the Inspector General has jurisdiction to investigate municipal
matters, review and audit municipal contracts and other transactions, and make reports and recommendations to municipal governing bodies based on such
audits, reviews, or investigations. Sensus shall cooperate with the inspector general as required by law in the exercise of the inspector general's functions,
authority, and power. The inspector general has the power to take swom statements, require the production of records, and to audit, monitor, investigate and
inspect the activities of the Customer, as well as contractors and lobbyists of the Customer in order to detect, deter, prevent, and eradicate fraud, waste,
mismanagement, misconduct, and abuses.
N. Governing Law and Dispute Resolution. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Florida.
Any and all disputes arising under, out of, or in relation to this Agreement, its negotiation, performance or termination ("Disoutes") shall first be resolved by
mediation between the Parties in Florida. If the Dispute is not resolved within sixty (60) days of the commencement of the mediation, it shall be litigated in
courts in and for Palm Beach County for state actions and the Southern District of Florida — Fort Lauderdale Division for any federal actions. To the maximum
extent permitted by law, the parties agree to a bench trial and that there shall be no jury in any Disputes.
0. Survival. The provisions of this Agreement that are applicable to circumstances arising after its termination or expiration shall survive such termination or
expiration.
P. Severability. In the event any provision of this Agreement is held to be void, unlawful or otherwise unenforceable, that provision will be severed from the
remainder of the Agreement and replaced automatically by a provision containing terms as nearly like the void, unlawful, or unenforceable provision as possible;
and the Agreement, as so modified, will continue to be in full force and effect.
Q. Four Comers. This written Agreement, including all of its exhibits, represents the entire understanding between and obligations of the parties and supersedes
all prior understandings, agreements, negotiations, and proposals, whether written or oral, formal or informal between the parties. Any additional writings shall
not modify any limitations or remedies provided in the Agreement. There are no other terms or conditions, oral, written, electronic or otherwise. There are no
implied obligations. All obligations are specifically set forth in this Agreement. Further, there are no representations that induced this Agreement that are not
included in it. The ONLY operative provisions are set forth in writing in this Agreement. Without limiting the generality of the foregoing, no purchase order
placed by or on behalf of Customer shall alter any of the terms of this Agreement. The parties agree that such documents are for administrative purposes
only, even if they have terms and conditions printed on them and even if and when they are accepted and/or processed by Sensus. Any goods, software or
services delivered or provided in anticipation of this Agreement (for e.g., as part of a pilot or because this Agreement has not yet been signed but the parties
have begun the deployment) under purchase orders placed prior to the execution of this Agreement are governed by this Agreement upon its execution and it
replaces and supersedes any such purchase orders.
R. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall
Confidential I Page 6 of 15
constitute one and the same instrument. Additionally, this Agreement may be executed by facsimile or electronic copies, all of which shall be considered an
original for all purposes.
Definitions. As used in this Agreement, the following terms shall have the following meanings:
A "Affiliate" of a party means any other entity controlling, controlled by, or under common control with such party, where "control' of an entity means the ownership, directly
or indirectly, of 501% or more of either, (i) the shares or other equity in such entity; or (ii) the voting rights in such entity.
B. "Confidential Information" means any and all non-public information of either party, including all technical information about either party's products or services, pricing
information, marketing and marketing plans, Customer's End Users' data, FlexNet System performance, FlexNet System architecture and design, FlexNet System software,
other business and financial information of either party, and all trade secrets of either party.
C. "End User' means any end user of electricity, water, and/or gas (as applicable) that pays Customer for the consumption of electricity, water, and/or gas, as applicable.
D. 'Field Devices" means the SmartPoint Modules .
E. 'FlexNet Base Station" identifies the Sensus manufactured device consisting of one transceiver, to be located on a tower that receives readings from the SmartPoint
Modules (either directly or via an R100 unit) by radio frequency and passes those readings to the RNI by TCP/IP backhaul communication. For clarity, FlexNet Base
Stations include Metro Base Stations.
F. "FlexNet System" is comprised of the SmartPoint Modules, RF Field Equipment, Server Hardware, software licenses, Spectrum Lease, and other equipment provided to
Customer hereunder. The FlexNet System only includes the foregoing, as provided by Sensus. The FlexNet System does not include goods, equipment, software, licenses
or rights provided by a third party or parties to this Agreement.
G. "Force Majeure" means an event beyond a partyls reasonable control, including, without limitation, acts of God, hurricane, flood, volcano, tsunami, tomado, storm, tempest,
mudslide, vandalism, illegal or unauthorized radio frequency interference, strikes, lockouts, or other industrial disturbances, unavailability of component parts of any goods
provided hereunder, acts of public enemies, wars, blockades, insurrections, riots, epidemics, earthquakes, fires, restraints or prohibitions by any court, board, department,
commission or agency of the United States or any States, any arrests and restraints, civil disturbances and explosion.
H. `Hosted Software" means those items listed as an Application in Exhibit A
I. "In/Out Costs' means any costs and expenses incurred by Customer in transporting goods between its warehouse and its End User's premises and any costs and
expenses incurred by Customer in installing, uninstalling and removing goods.
J. "Intellectual ProperV means patents and patent applications, inventions (whether patentable or not), trademarks, service marks, trade dress, copyrights, trade secrets,
know-how, data rights, specifications, drawings, designs, maskwork rights, moral rights, author's rights, and other intellectual property rights, including any derivations
and/or derivative works, as may exist now or hereafter come into existence, and all renewals and extensions thereof, regardless of whether any of such rights arise under
the laws of the United States or of any other state, country orjurisdiction, any registrations or applications thereof, and all goodwill pertinent thereto.
K. "LCMP identifies the load control modules.
L. "Ongoing Fee" means the annual or monthly fees, as applicable, to be paid by Customer to Sensus' authorized distributor during the Term of this Agreement
M. "Patches' means patches orother maintenance releases of the Software that correct processing errors and otherfaults and defects found previous versions ofthe Software.
For clarity, Patches are not Updates or Upgrades.
N. "Permitted Use" means only for reading and analyzing data from Customer's Field Devices in the Service Territory. The Permitted Use does not include reading third
devices not provided by Sensus or reading Field Devices outside the Service Territory.
0. "R100 Unif' identifies the Sensus standalone, mounted transceiver that takes the radio frequency readings from the SmartPoint Modules and relays them by radio
frequency to the relevant FlexNet Base Station or directly to the RNI by TCP/IP backhaul communication, as the case may be.
P. "Release" means both Updates and Upgrades.
Q. "Remote Transceiver' identifies the Sensus standalone, mounted relay device that takes the radio frequency readings from the SmartPoint Modules and relays them
directly to the RNI by TCP/IP backhaul communication.
R. "RFField Equipment' means, collectively, FlexNet Base Stations, R100 units (if any) and Remote Transceivers (if any).
S. "RNF identifies the regional network interfaces consisting of hardware and software used to gather, store, and report data collected by the FlexNet Base Stations from the
SmartPoint Modules. The RNI hardware specifications will be provided by Sensus upon written request from Customer.
T. "RNI Software" identifies the Sensus proprietary software used in the RNI and any Patches, Updates, and Upgrades that are provided to Customer pursuant to the terms
of this Agreement.
U. "Service Territory" identifies the geographic area where Customer utilizes Sensus equipment to provide services to End Users as of the Effective Date. This area will be
described on the propagation study in the parties' Spectrum Lease filing with the FCC.
V. "Server Hardware" means the RNI hardware.
W. "SmartPofntm Modules" identifies the Sensus transmission devices installed on devices such as meters, distribution automation equipment and demand/response
devices located at Customer's End Users' premises that communicate with the relevant devices and transmit those communications by radio frequency to the relevant
piece of RF Field Equipment.
X. "Software" means all the Sensus proprietary software provided pursuant to this Agreement, and any Patches, Updates, and Upgrades that are provided to Customer
pursuant to the terms of this Agreement. The Software does not include any third party software.
Y. "Updates" means releases of the Software that constitute a minor improvement in functionality.
Z. "Upgrades" means releases of the Software which constitute a significant improvement in functionality or architecture of the Software.
AA "WAN Backhauf' means the communication link between FlexNet Base Stations and Remote Transceivers and RNI.
Confidential I Page 7 of 15
Exhibit A
Software
Software as a Service
1. Description of Services.
This exhibit contains the details of the Software as a Service that Sensus shall provide to Customer if both; (i) pricing for the application of Software as a Service has
been provided to the Customer, and (ii) the Customer is current in its payments to Sensus' authorized distributor for such application of Software as a Service.
A. Software as a Service Generally.
Software as a Service is a managed service in which Sensus will be responsible for the day-to-day monitoring, maintenance, management, and supporting of
Customer's software applications. In a Software as a Service solution, Sensus owns all components of the solution (server hardware, storage, data center,
network equipment, Sensus software, and all third -party software) required to run and operate the application. These software applications consist of the following
(each an "Application"):
• Regional Network Interface (RNI) Software
• SensusAnalytics
o Enhanced Package
The managed application systems consist of the hardware, Sensus Software, and other third -party software that is required to operate the software applications.
Each Application will have a production, and Disaster Recovery (as described below) environment Test environments are not provided unless otherwise
specifically agreed by Sensus in writing. Sensus will manage the Applications by providing 24 x 7 x 365 monitoring of the availability and performance of the
Applications.
B. Use of Software as a Service. Subject to the terms of this Agreement, Sensus shall make Software as a Service available to Customer to access and use
solely for the Permitted Use and solely for so long as Customer is current in its payments to Sensus or its authorized distributor for Software as a Service. The
Software as a Service term commences on the date that Sensus first makes Software as a Service available to Customer for use, and ends upon the earlier of:
(i) the expiration or termination of the Agreement; (ii) breach by Customer of this exhibit or the Agreement; or (III) Customer's termination of Software as a Service
as set forth in paragraph (C) below.
C. Termination of an Application. Customer shall have the option at any time before the end of the Term to terminate any Application by giving Sensus one
hundred twenty (120) days prior written notice. Such notice, once delivered to Sensus, is irrevocable. Should Customer elect to terminate any Application,
Customer acknowledges that; (a) Customer shall pay all applicable fees, including any unpaid Software as a Service fees due in the current calendar year plus
a ten percent (10%) early termination fee, where such fee is calculated based on the annual Software as a Service fee due in the current calendar year, and (b)
Software as a Service for such Application shall immediately cease. If Customer elects to terminate the RNI Application in the Software as a Service environment
but does not terminate the Agreement generally, then upon delivery of the notice to Sensus, Customer shall purchase the necessary (a) RNI hardware from a
third party and (b) RNI software license at Sensus' then -current pricing. No portion of the Software as a Service fees shall be applied to the purchase of the RNI
hardware or software license.
D. Software as a Service means only the following services:
L Sensus will provide the use of required hardware, located at Sensus' or a third -party s data center facility (as determined by Sensus), that is necessary to
operate the Application.
ii. Sensus will provide production and disaster recovery environments for Application.
iii. Sensus will provide patches, updates, and upgrades to latest Sensus Hosted Software release.
iv. Sensus will configure and manage the equipment (server hardware, routers, switches, firewalls, etc.) in the data centers:
(a) Network addresses and virtual private networks (VPN)
(b) Standard time source (NTP or GPS)
(c) Security access points
(d) Respond to relevant alarms and notifications
v. Capacity and performance management. Sensus will:
(a) Monitor capacity and performance of the Application server and software applications 24x7x365 using KPI metrics, thresholds, and alerts to
proactively identify any potential issues related to system capacity and/or performance (i.e. database, backspool, logs, message broker storage,
etc.)
(b) If an issue is identified to have a potential impact to the system, Sensus will open an incident ticket and manage the ticket through resolution per
Exhibit B, Technical Support.
(c) Manage and maintain the performance of the server and perform any change or configuration to the server, in accordance to standard configuration
and change management policies and procedures.
(d) Manage and maintain the server storage capacity and performance of the Storage Area Network (SAN), in accordance to standard configuration
and change management policies and procedures.
(e) Exceptions may occur to the system that require Sensus to take immediate action to maintain the system capacity and performance levels, and
Sensus has authority to make changes without Customer approval as needed, in accordance to standard configuration and change management
policies and procedures.
vi. Database management. Sensus will:
(a) Implement the data retention plan and policy, and will provide the policy upon request.
(b) Monitor space and capacity requirements.
(c) Respond to database alarms and notifications.
(d) Install database software upgrades and patches.
(e) Perform routine database maintenance and cleanup of database to improve capacity and performance, such as rebuilding indexes, updating indexes,
consistency checks, run SQL query/agent jobs, etc.
vii. Incident and Problem Management. Sensus will:
(a) Proactively monitor managed systems (24x7x365) for key events and thresholds to proactively detect and identify incidents.
(b) Respond to incidents and problems that may occur to the Application(s).
(c) Maintain policies and procedures for responding to incidents and performing root cause analysis for ongoing problems.
(d) Correlate incidents and problems where applicable.
Confidential I Page 8 of 16
(a) Sensus personnel will use the self-service portal to document and track incidents.
(f) In the event that Sensus personnel is unable to resolve an issue, the issue will be escalated to the appropriate Subject Matter Expert (SME).
(g) Maintain responsibility for managing incident and problems through resolution and will coordinate with Customer's personnel and/or any required
third -party vendor to resolve the issue.
(h) Provide telephone support consistent with Exhibit B, Technical Support in the case of undetected events.
viii. Security Management. Sensus will:
(a) Monitor the physical and cyber security of the server and Application(s) 24x7x365 to ensure system is highly secure in accordance with NIST
Security Standards.
(b) Perform active intrusion prevention and detection of the data center network and firewalls, and monitor logs and alerts.
(c) Conduct period penetration testing of the network and data center facilities.
(d) Conduct monthly vulnerability scanning by both internal staff and external vendors.
(a) Perform anti -virus and Malware patch management on all systems.
(f) Install updates to virus protection software and related files (including virus signature files and similar files) on all servers from the update being
generally available from the anti -virus software provider.
(g) Respond to any potential threat found on the system and work to eliminate any virus or malware found.
(h) Adhere to and submit certification to NERC/CIP Cyber Security standards.
(i) Monitors industry regulation/standards regarding security— NERC, FERC, NIST, OpenSG, etc. through the dedicated Sensus security team.
0) Provide secure web portal access (SSQ to the Application(s).
ix. Backup and Disaster Recovery Management. Sensus will:
(a) Perform daily backups of data providing one (1) year of history for auditing and restoration purposes.
(b) Back-up and store data (on tapes or other storage media as appropriate) off -site to provide protection against disasters and to meet file recovery
needs.
(c) Conduct incremental and full back-ups to capture data, and changes to data, on the Application(s).
(d) Replicate the Application(s) environments to a geographically separated data center location to provide a full disaster recovery environment for the
Application production system.
(e) Provide disaster recovery environment and perform fail -over to Disaster Recovery environment within forty-eight (48) hours of declared event.
(f) Generate a report following each and any disaster measuring performance against the disaster recovery plan and identification of problem areas
and plans for resolution.
(g) Maintain a disaster recovery plan. In the event of a disaster, Sensus shall provide the services in accordance with the disaster recovery plan.
(h) In the case of a disaster and loss of access to or use of the Application, Sensus would use commercially reasonable efforts per the Recovery Time
Objectives (RTO) and Recovery Point Objectives (RPO) specified herein to restore operations at the same location or at a backup location within
forty-eight (48) hours.
(i) The Application shall have a RTO of forty-eight (48) hours.
0) The RPO shall be a full recovery of the Application(s), with an RPO of one (1) hours, using no more than a twenty-four (24) hour old backup. All
meter -related data shall be pushed from each Base Station(TGB restoring the database to real-time minus external interfaced systems from the day
prior.
(k) Data from external interfaced systems shall be recreated within a forty-eight (48) hour period with the assistance of Customer personnel and staff,
as needed.
Customer Responsibilities:
i. Coordinate and schedule any changes submitted by Sensus to the system in accordance with standard configuration and change management procedures.
ii. Participate in all required configuration and change management procedures.
iii. Customer will log incidents related to the managed Application with Sensus personnel via email, web portal ticket entry, or phone call.
iv. Responsible for periodic processing of accounts or readings (i.e., billing files) for Customer's billing system for billing or other analysis purposes.
v. Responsible for any field labor to troubleshoot any SmadPoint modules or smart meters in the field in populations that have been previously deployed and
accepted.
vi. First response labor to troubleshoot FlexNet Base Station, R100s, Remote Transceivers or other field network equipment.
vii. Responsible for local area network configuration, management, and support.
viii. Identify and research problems with meter reads and meter read performance.
ix. Create and manage user accounts.
x. Customize application configurations.
A. Support application users.
xii. Investigate application operational issues (e.g., meter reads, reports, alarms, etc.).
xiii. Respond to alarms and notifications.
xiv. Perform firmware upgrades over -the -air, or delegate and monitor field personnel for on -site upgrades.
F. Software as a Service does not include any of the following services:
i. Parts or labor required to repair damage to any field network equipment that is the result of a Force Majeure event.
ii. Any integration between applications, such as Hams MeterSense, would require a Professional Services contract agreement to be scoped, submitted,
and agreed in a signed writing between Sensus and all the applicable parties.
If an item is not listed in subparagraphs in item (D) above, such item is excluded from the Software as a Service and is subject to additional pricing.
Further Agreements
A. System Uptime Rate.
i. Sensus (or its contractor) shall manage and maintain the Application(s) on computers owned or controlled by Sensus (or its contractors) and shall provide
Customer access to the managed Application(s) via intemet or point to point connection (i.e., Managed -Access use), according to the terms below. Sensus
endeavors to maintain an average System Uptime Rate equal to ninety-nine (99.0) per Month (as defined below). The System Uptime Rate, cumulative
across all Applications, shall be calculated as follows:
System Uptime Rate = 100 x (TMO— Total Non -Scheduled Downtime minutes in the Month)
Confidential I Page 9 of IS
TMO
Calculations
a. Targeted Minutes of Operation or TMO means total minutes cumulative across all Applications in the applicable month minus the Scheduled
Downtime in the Month.
b. Scheduled Downtime means the number of minutes during the Month, as measured by Sensus, in which access to any Application is scheduled
to be unavailable for use by Customer due to planned system maintenance. Sensus shall provide Customer notice (via email or otherwise) at least
seven (7) days in advance of commencement of the Scheduled Downtime.
c. Non -Scheduled Downtime means the number of minutes during the Month, as measured by Sensus, in which access to any Application is
unavailable for use by Customer due to reasons other than Scheduled Downtime or the Exceptions, as defined below (e.g., due to a need for
unplanned maintenance or repair).
Exceptions. Exceptions mean the following events.
• Force Majeure
• Emergency Work, as defined below; and
• Lack of Internet Availability, as described below.
a. Emergency Work. In the event that Force Majeure, emergencies, dangerous conditions or other exceptional circumstances arise or continue during
TMO, Sensus shall be entitled to take any actions that Sensus, in good faith, determines is necessary or advisable to prevent, remedy, mitigate, or
otherwise address actual or potential harm, interruption, loss, threat, security or like concern to any of the Application(s) ("Emergency Work"). Such
Emergency Work may include, but is not limited to: analysis, testing, repair, maintenance, re -setting and other servicing of the hardware, cabling,
networks, software and other devices, materials and systems through which access to and/or use of the Application(s) by the Customer is made
available (the "Managed Systems"). Sensus shall endeavor to provide advance notice of such Emergency Work to Customer when practicable and
possible.
b. Lack of Internet Availability. Sensus shall not be responsible for any deterioration of performance attributable to latencies in the public internet or
point-to-point network connection operated by a third party. Customer expressly acknowledges and agrees that Sensus does not and cannot control
the flow of data to or from Sensus' networks and other portions of the Internet, and that such flow depends in part on the performance of Internet
services provided or controlled by third parties, and that at times, actions or inactions of such third parties can impair or disrupt data transmitted
through, and/or Customer's connections to, the Internet or point-to-point data connection (or portions thereof). Although Sensus will use commercially
reasonable efforts to take actions Sensus may deem appropriate to mitigate the effects of any such events, Sensus cannot guarantee that such
events will not occur. Accordingly, Sensus disclaims any and all liability resulting from or relating to such events.
System Availability. For each month that the System Uptime Rates for the production RNI falls below 99.0%, Sensus will issue Customer the following
Service Level Credits:
System Uptime Rate per calendar month
Service Level Credit
Less than 99.0% but at least 97.5%
5% of the monthly RNI SaaS Fees in which the service level default
occurred (Note: SaaS fees are pre -paid annually and for purposes
of SLA Credits are computed on a monthly basis.)
Less than 97.5% but at least 95.0%
10% of the monthly RNI SaaS Fees in which the service level
default occurred
Less than 95.0%
20% of the monthly RNI SaaS Fees in which the service level
default occurred
Service Level Credits for any single month shall not exceed 20% of the RNI SaaS Fee associated with the month in which the service level default occurred.
Sensus records and data will be the sole basis for all Service Level Credit calculations and determinations, provided that such records and data must be
made available to Customer for review and agreement by Customer. To receive a Service Level Credit, Customer must issue a written request no later
than ten (10) days after the Service Level Credit has accrued. Sensus will apply each valid Service Level Credit to the Customer's invoice within 2 billing
cycles after Sensus' receipt of Customer's request and confirmation of the failure to meet the applicable Service Level Credit. Service Level Credits will
not be payable for failures to meet the System Uptime Rate caused by any Exceptions. No Service Level Credit will apply if Customer is not current in its
undisputed payment obligations under the Agreement. Service Level Credits are exclusive of any applicable taxes charged to Customer or collected by
Sensus. Sensus shall not refund an unused Service Level Credits or pay cash to Customer for any unused Service Level Credits. Any unused Service
Level Credits at the time the Agreement terminates will be forever forfeited. THE SERVICE LEVEL CREDITS DESCRIBED IN THIS SECTION ARE THE
SOLE AND EXCLUSIVE REMEDY FOR SENSUS' FAILURE TO MEET THE SYSTEM UPTIME REQUIREMENT OR ANY DEFECTIVE SAAS
PERFORMANCE. IN NO EVENT SHALL THE AGGREGATE AMOUNT OF SERVICE LEVEL CREDITS IN ANY ANNUAL PERIOD EXCEED 20% OF
THE ANNUAL RNI SAAS FEE.
B. Data Center Site -Security. Although Sensus may modify such security arrangements without consent or notice to Customer, Customer acknowledges the
following are the current arrangements regarding physical access to and support of the primary hardware components of the Managed Systems:
i. The computer room(s) in which the hardware is installed is accessible only to authorized individuals.
ii. Power infrastructure includes one or more uninterruptible power supply (UPS) devices and diesel generators or other alternative power for back-up
electrical power.
iii. Air-conditioning facilities (for humidity and temperature controls) are provided in or for such computer room(s) and can be monitored and adjusted for
humidity and temperature settings and control. Such air systems are supported by redundant, back-up and/or switch -over environmental units.
iv. Such electrical and A/C systems are monitored on an ongoing basis and personnel are available to respond to system emergencies (if any) in real time.
v. Dry pipe pre -action fire detection and suppression systems are provided.
vi. Data circuits are available via multiple providers and diverse paths, giving access redundancy.
C. Responsibilities of Customer.
i. Customer shall promptly pay all Software as a Service fees.
ii. Customer may not (i) carelessly, knowingly, intentionally or maliciously threaten, disrupt, harm, abuse or interfere with the Application(s), Managed Systems
or any of their functionality, performance, security or integrity, nor attempt to do so; (ii) impersonate any person or entity, including, but not limited to,
Sensus, a Sensus employee or another user; or (iii) forge, falsify, disguise or otherwise manipulate any identification information associated with
Customer's access to or use of the Application(s).
iii. The provisioning, compatibility, operation, security, support, and maintenance of Customer's hardware and software ("Customer's Systems") is exclusively
the responsibility of Customer. Customer is also responsible, in particular, for correctly configuring and maintaining (i) the desktop environment used by
Confidential I Page 10 of 15
Customer to access the Application(s) managed by Sensus; and (ii) Customers network router and firewall, if applicable, to allow data to flow between
the Customers Systems and Sensus' Managed Systems in a secure manner via the public Internet.
iv. Upon receiving the system administrator account from Sensus, Customer shall create usemame and passwords for each of Customers authorized users
and complete the applicable Sensus registration process (Authorized Users). Such usemames and passwords will allow Authorized Users to access the
Application(s). Customer shall be solely responsible for maintaining the security and confidentiality of each user ID and password pair associated with
Customers account, and Sensus will not be liable for any loss, damage or liability arising from Customers account or any user ID and password pairs
associated with Customer. Customer is fully responsible for all acts and omissions that occur through the use of Customers account and any user ID and
password pairs. Customer agrees (i) not to allow anyone other than the Authorized Users to have any access to, or use of Customers account or any user
ID and password pairs at any time; (ii) to notify Sensus immediately of any actual or suspected unauthorized use of Customers account or any of such
user ID and password pairs, or any other breach or suspected breach of security, restricted use or confidentiality; and (iii) to take the Sensus-recommended
steps to log out from and otherwise exit the Application(s) and Managed Systems at the end of each session. Customer agrees that Sensus shall be
entitled to rely, without inquiry, on the validity of the user accessing the Application(s) application through Customers account, account ID, usemames or
passwords.
v. Customer shall be responsible for the day-to-day operations of the Application(s) and FlexNet System. This includes, without limitation, (i) researching
problems with meter reads and system performance, (ii) creating and managing user accounts, (iii) customizing application configurations, (iv) supporting
application users, (v) investigating application operational issues, (A) responding to alarms and notifications, and (vii) performing over -the -air commands
(such as firmware updates or configuration changes).
Software Solution Components.
I. Description of Software Solutions. Sensus software consists of a core communication module and a set of applications. Some applications are required
to perform basic solution capabilities, other applications are optional and add additional capabilities and function to the overall solution. As Customers
business process expands and/or new Sensus offerings are made available, additional applications and functionality can dynamically be added to the
solution, provided Customer purchases such additional applications.
ii. Regional Network Interface. The Regional Network Interface (RNI) or Sensus head -end is the centralized intelligence of the FlexNet network; the RNI's
primary objective is to transfer endpoint (such as meters) data to the Customer and the advanced feature applications. The RNI is adaptable to Customer
configurations by simultaneously supporting a wide range of FlexNet enabled endpoints; including but not limited to meters (electric, water, gas), street
lighting, and Home Area Network devices.
a. Core Package
(1) Communication
1. Manages all inbound and outbound traffic to and from endpoints
2. Outbound routing optimization
3. Route analyzer
4. AES256 bit encryption of radio messages
5. Reports and metric details of network performance and troubleshooting aids
6. Management of RF equipment (base stations and endpoint radios)
(ii) Data Collection
1. Missing read management
2. Management of duplicate reads
3. 60 day temporary storage
(iii) Application integration
1. To Sensus Analytics applications
2. Enable 3rd party application integration
3. Batch CMEP file export
4. Real-time access through MultiSpeak
(iv) Endpoint Management
1. Gas, water, electric, lighting concurrent support
2. Remote configuration
3. Remote firmware updates
4. Reports, metrics and Troubleshooting
(v) User Management
1. Secure access
2. Password management
3. Definable user roles
4. User permissions to manage access to capabilities
Integration of RNI. Sensus shall provide RNI integration support services to Customer only to the extent specifically provided below:
(i) Sensus shall meet with the representative from the Customers system(s) targeted for integration to determine which integration method is
appropriate (e.g., Multispeak, CMEP, etc.).
1. In scope and included integration efforts: Provide the gateway URLs to the integrating system as needed, provide Customer with standard
integration API documentation, validate and test that the correct Customer information is flowing into and/or out of the RNI.
2. Out of scope and subject to additional charges: Modifications or extensions to the standard API provided by Sensus and any integration
efforts not outlined above as in scope and included.
(ii) Customer Responsibilities:
1. Provide Sensus with information about the relevant information Customer wishes to transfer and integrate with the RNI.
2. Establish the network and security required for the two systems to reasonably communicate.
3. Verify integration to third party system functionality is working as intended.
(iii) If an item is not listed in subparagraph (i) above, such item is excluded from the integration of Sensus RNI Support and is subject to additional
pricing.
Sensus Analytics
Sensus Analytics is a cloud -based solution and data platform that allows storage and retrieval of raw reads and data from other sources for analysis, exportation, and
inquiry or reporting. The platform provides applications and reporting capabilities.
Confidential I Page 11 of 15
A. Essential Package. The Essential Package of the Sensus Analytics Application shall consist of the following modules:
i. Device Access
a. Allows search for meter details by using data imported from the billing system or the Sensus Device ID or AM[ ID.
b. Allows a view of the meter interval or register reads.
c. Meter data is available to be copied, printed, or saved to certain user programs or file formats, specifically CSV, PDF, and Spreadsheet.
d. Allows the current and historical data to be viewed.
e. Allows the current usage to be compared to historical distribution averages.
f. Allows the user to see the meter location on a map view.
g. Allows notifications for an event on a single meter to be forwarded to a Customer employee.
h. Allows details to be viewed about a meter— (dependent on the data integrated from other systems).
ii. Meter Insight (provides the following)
a. # of active meters.
b. # of orphaned meters with drill down to the list of meters.
c. # of inactive meters with usage drill down to the list of meters.
d. # of stale meters with drill down to the list of meters.
e. # of almost stale meters with drill down to the list of meters.
f. # of meters where no read is available with drill down to the list of meters.
g. # of meters with maximum threshold exceptions with drill down to the list of meters.
h. # of meters with minimum threshold exceptions with drill down to the list of meters.
i. # of unknown radios with drill down to the list of meters.
iii. Report Access
a. Allows the user to see meter alarms and choose a report from a list of standard reports.
b. Master Route Register Reads: Shows the latest reads for all meters within specified time window.
C. Meter Route Intervals Reads: Allows users to inspect intervals of a single meter over a period of time.
d. Master Route No Readings: List all meters that are active in the system, but have not been sending reads within the specified time window.
e. Consumption Report: List meters' consumption based on meter readings within the specified time window.
f. Zero Consumption for Period: List meters whose readings do not change over a period of time.
g. Negative Consumption: Shows the number of occurrences and readings of negative consumption for the last 24hr, 48hr and 72hr from the entered
roll up date.
h. High Low Exception Report: Displays meters whose reads exceed minimum or/and maximum threshold, within a time range.
I. Consumption vs Previous Reported Read: Compares latest reading (from RNI) with last known read received from CIS.
j. Consumption Exception 24 hour Report: This report shows meters that satisfy these two conditions: (1) The daily average consumptions exceed
entered daily consumption threshold; (2) The number of days when daily thresholds are exceeded are greater than the entered exception per day
threshold.
k. Endpoint Details: Shows the current state of meters that are created within the specified time range.
I. Orphaned Meters: List meters that are marked as'orphaned', which are created as of entered Created as of parameter.
m. Billing Request Mismatch: Displays meters in a billing request that have different AMR id with the ones sent by RNI. It also shows AMR id in billing
request that have different meter Win the RNI. Users must enter which billing request file prior to running the report.
n. All Alarms Report: List all alarms occurred during a time window. Users can select which alarm to show.
iv. Billing Access
a. Initiate the creation of billing export files formatted to the import needs of the billing system.
b. Receive billing request files from the billing system to identify what meters to include in the billing export file in the case where billing request file
option is used.
C. Provides a repository of past billing files that were either used for billing preparation or actually sent to the billing system.
d. Will store created billing files for a period of three years unless otherwise denoted.
e. The system will allow creation of test files before export to the billing system.
v. Billing Adaptor
a. The underlying configurator and tools mapping the extraction of billing data to enable integration to the utility's billing system.
vi. Data Store
a. Allows storage of meter reading data including Intervals, Registers, and Alarms to be stored.
b. Stored data is available online for reports and analysis.
c. Data will be retained for 3 years. Additional duration can be purchased.
B. Enhanced Package. The Enhanced Package shall consist of the modules listed above in the Essential Package, as well as the following additional modules:
I. Alarm Insight
a. Allows the user to summarize and filter alarms by a date range.
b. Allows the user to review all alarm types on a single screen.
c. The user can filter out the alarms not wanted on the screen.
d. Alarm totals can be visualized.
e. Adds a view of trending alarms over time.
f. Click to drill down on an alarm to gain more information on specific events.
g. Click to analyze a specific event on a particular device.
ii. Alert Manager
a. Allows creation of alert groups who will be notified when an alarm occurs.
b. Users can manage alert groups by adding and removing group members.
c. Allows selection of notification method for how end users in the group will be notified; email or SMS (text message).
Confidential I Page 12 of 15
d. Allows creation of an alert from the available system events from smart points and assign to a group.
e. Monitors the systems meters for events. When an event is triggered, all users in the group will be notified.
C. Integration of Sensus Analytics. Sensus shall provide integration support services to Customer only to the extent specifically provided below:
L Sensus shall provide Customer with a simple flat file specification known as VFlex for the integration of the Customer's back office system to the Sensus
Analytics modules. The VFlex shall contain the following types of information: Device ids, end users in the system, end user status, end user account
information, end user name, and other end user details. This flat file may be delimited or fixed width. Customer shall produce this file and transmit it to the
FTP location designated by Sensus. When sent to the Sensus FTP servers, this file exchange will enable the system to become operational with the
Customer's systems. Customer shall produce this file and transmit it to the FTP location designated by Sensus. Sensus will provide reasonable support
to explain to Customer the required vs. optional fields that are in the specification, testing and validation of the file format and content.
ii. In scope and included integration efforts: kick-off meeting to engage all required parties, mapping the Customer's fields to the VFlex specification, validation
of expected output, and a two (2) hour system review of Sensus Analytics application and integration with the Customer's system (conducted remotely).
iii. Out of scope and subject to additional charges will be the transformation of data where business logic including code must be written to modify the field
content or format of the data to meet the VFlex specification.
iv. Sensus' integration services consist of four (4) hours of assistance (remote or on -site, as determined by Sensus). If additional time is needed to complete
the integration efforts, Sensus shall invoice Customer for additional fees on an actual time and materials basis.
v. If an item is not listed in subparagraphs (1) or (tj) above, such item is excluded from the integration of Sensus Analytics Support and is subject
to additional pricing.
vi. Data Import. The Sensus Analytics Application contains adapters for the import of data from; (a) Customer's FlexNet System; and/or (b) AutoRead
application for handheld and drive by systems, as applicable.
vi1. Customer Acknowledgements.
a. Customer acknowledges that the Sensus Analytics Application provides up to fifty (50) user logins for Customer's use.
b. Customer acknowledges and agrees the Sensus Analytics Application is based upon the actual number of End Users within Customer's Service
Territory. Pricing may increase if Customer's Service Territory or actual number of End Users expands.
c. Customer acknowledges that all data related to the Sensus Analytics Applications is geographically hosted within the United States of America.
Customer accepts the geographic location of such hosting, and indemnifies Sensus for any claims resulting therefrom.
d. Customer acknowledges and agrees that the Intellectual Property provisions of this Agreement apply in all respects to Customer's access to and
use of the Sensus Analytics Applications.
e. Customer is responsible for validating the data analyzed by the Sensus Analocs Applications. Sensus makes no promises of improving Customer's
operations or saving Customer money, nor is Sensus liable for any damages resulting from decisions made by Customer related to Customer's use
of Sensus Analytics.
Third Party Software.
A. RedHat Linux.lf Sensus is providing Customer with a license to use RedHat Linux Software, Customer agrees to the following:
By entering into this Agreement, Customer agrees to abide by and to be legally bound by the terms and conditions of the Red Hat End User License Agreements
identified below, each of which are incorporated into this Agreement by reference and are available at the websites identified below. Please read the Red Hat
End User License Agreements and incorporated references carefully.
Subscription: End User License Agreement:
Red Hat Enterprise Linux hfp://w m.redhat.comAicenses/rhel_rha_eula.html
JBoss Enterprise Middleware http://www.redhat.com/licensesfjboss_eula.html
Confidential I Page 13 of 15
Exhibit B
Technical Support
1. Introduction
Sensus Technical Services provides utility customers with a single point of contact for Tier 1 support of technical issues as well as any coordination of additional
resources required to resolve the issue. Requests that require specialized skills are to be forwarded to a senior support engineer or Technical Advisor within the
team for further analysis. If Technical Services has exhausted all troubleshooting efforts for the product type, the issue will escalate to the Engineering Support
Team. Occasionally, on -site troubleshooting/analysis may be required. The preferred order of on -site support is:
a) The Customer (for assistance with the easiest and lowest time-consuming activities such as power on/power off).
b) The local distributor.
c) Sensus employees or contracted personnel, if required to fulfill a contract commitment.
Support Categories
2.1. General questions regarding functionality, use of product, how-to, and requests for assistance on Sensus AMR, AMI, RF Network Equipment, Metering
Products, Sensus Lighting Control, and Demand Response Management System (FlexNet Home).
2.2. Proactive reporting and resolution of problems.
2.3. Reactive reporting to isolate, document, and solve reported hardware/software defects.
2.4. Responding to service requests and product changes.
2.5. Addressing customer inquiries with printed or electronic documentation, examples, or additional explanation/clarification.
Support Hours
3.1. Standard Support Hours: Toll -free telephone support (1-800-638-3748 option #2) is available Monday thru Friday from 8:00 a.m. EST to 8:00 p.m. EST. After-
hours, holiday and weekend support for Severity 1 and Severity 2 issues is available by calling 1-800-638-3748, option #8.
Support Procedures
4.1. Customer identifies an issue or potential problem and calls Technical Services at 1-800-638-3748 Option #2. The Customer Service Associate or Technical
Support Engineer will submit a SalesForce ticket.
4.2. The Customer Service Associate or Technical Support Engineer will identify the caller name and utility by the assigned software serial number, city, and state
based on where the call originated. The Customer Service Associate or Technical Support Engineer will require a brief description of the problem symptoms,
or error messages depending on nature of the incident. The nature of the problem and severity levels will be mutually agreed upon by both parties (either at
the time the issue is entered or prior to upgrading or downgrading an existing issue) using the severity definitions below as a guideline. The severity level is
then captured into SalesForce for ticket creation and resolution processing. Any time during the processing of this ticket, if the severity level is changed by
Sensus, the customer will be updated.
A. Severity Levels Description:
Sev1 Customer's production system is down. The system is unusable resulting in total disruption of work. No workaround is available and requires
immediate attention.
Example: Network mass outage, all reading collection devices inoperable, inoperable head end software (e.g., FlexWare, Sensus MDM). Not able to
generate billing files.
Sev2 Major system feature/function failure. Operations are severely restricted; there is a major disruption of work, no acceptable work -around is
available, and failure requires immediate attention.
Examples: Examples: Network equipment failure (e.g., FlexNet Echo, FlexNet Remote, Base Station transceiver, or VGB); inoperable reading devices
(e.g., AR5500, VXU, VGB, or CommandLink); head end software application has important functionality not working and cannot create export file for
billing system operations.
Sev3 The system is usable and the issue doesn't affect critical overall operation.
Example: Minor network equipment failure (e.g., Echo/Remote false alarms or Base Station transceiver false alarms); head end software application
operable but reports are not running properly, modification of view or some non -critical function of the software is not running.
4.3. The Customer Service Associate or Technical Support Engineer identifies whether or not the customer is on support. If the customer is not on support, the
customer is advised of the service options as well as any applicable charges that may be billed.
4.4. Calls are placed in a queue from which they are accessible to Technical Support Engineers on a first -come -first -served basis. A 1st level Customer Service
Associate may assist the customer, depending on the difficulty of the call and the representative's technical knowledge. Technical Support Engineers (Tier 1
support) typically respond/resolve the majority of calls based on their product knowledge and experience. A call history for the particular account is researched
to note any existing pattern or if the call is a new report. This research provides the representative a basis and understanding of the account as well as any
associated problems and/or resolutions that have been communicated.
a. Technical Services confirms that there is an issue or problem that needs further analysis to determine its cause. The following information must be
collected: a detailed description of the issue's symptoms, details on the software/hardware product and version, a description of the environment in which
the issue arises, and a list of any corrective action already taken.
b. Technical Services will check the internal database and product defect tracking system, to see if reports of a similar problem exist, and if any working
solutions were provided. If an existing resolution is found that will address the reported issue, it shall be communicated to the customer. Once it is confirmed
that the issue has been resolved, the ticket is closed.
C. If there is no known defect or support that defines the behavior, Technical Services will work with the customer to reproduce the issue. If the issue can be
reproduced, either at the customer site or within support center test lab, Technical Services will escalate the ticket for further investigation / resolution.
If the issue involves units that are considered to be defective with no known reason, the representative will open a Special Investigation RMA through the
SalesForce system. If it is determined that a sample is required for further analysis, the customer will be provided with instructions that detail where to send the
product sample(s) for a root cause analysis. Once it is determined that the issue cannot be resolved by Tier 1 resources, the ticket will be escalated to Tier 2
support for confirmation/workarounds to resolve immediate issue. Technical Services will immediately contact the customer to advise of the escalation. The
response and escalation times are listed in Section 5. At this time, screen shots, log files, configuration files, and database backups will be created and
attached to the ticket.
5. Response and Resolution Targets.
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Sensus Technical Support will make every reasonable effort to meet the following response and resolution targets:
Severity
Standard Target
Response
Standard Target Resolution
Resolution (one or more of the following)
Immediately assign trained and qualified
Satisfactory workaround is provided.
Services Staff to correct the error on an
• Program patch is provided.
1
30 Minutes
expedited basis. Provide ongoing
. Fix incorporated into future release.
communication on the status of a
0 Fix or workaround incorporated into
correction (24 hours).
SalesForce Knowledge Base.
• Satisfactory workaround is provided.
Assign trained and qualified Services
0 Program patch is provided.
2
4 hours
Staff to correct the error. Provide
communication as updates occur (48
. Fix incorporated into future release.
hours).
Fix or workaround incorporated into
SalesForce Knowledge Base.
• Answer to question is provided.
• Satisfactory workaround is provided.
3
1 Business Day
30 business days
0 Fix or workaround incorporated into
SalesForce Knowledge Base.
• Fix incorporated into future release.
6. Problem Escalation Process.
6.1. If the normal support process does not produce the desired results, or if the severity has changed, the issue may be escalated as follows to a higher level of
authority.
6.1.1.1. Severity 1 issues are escalated by Sales or Technical Services to a Supervisor if not resolved within 2 hours; to the Manager level if not resolved
within 4 hours; to the Director level if not resolved within the same business day; and to the VP level if not resolved within 24 hours.
6.1.1.2. A customer may escalate an issue by calling 1-800-638-3748, Option 2. Please specify the SalesForce ticket number and the reason why the issue
is being escalated.
6.1.1.3. In the event that a customer is not satisfied with the level of support or continual problem with their products, they may escalate a given SalesForce
ticket to Manager of Technical Services (1-800-638-3748, Option 2).
7. General Support Provisions and Exclusions.
7.1. Sensus provides online documentation for Sensus products, and all Sensus customers are provided access to this online database, which includes operation,
configuration and technical manuals. The customer shall provide names and email accounts to Sensus so Sensus may provide access to the product
documentation.
7.2. Specialized support from Sensus is available on a fee basis to address support issues outside the scope of this support plan or if not covered under another
specific contract or statement of work. For example: specialized systems integration services or out of warranty network equipment repair.
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