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HomeMy WebLinkAboutContract 43219 (2)Ctl'u a° SECRETARY CONTRACT NO. LICENSEE City of Forth Worth, Texas Licensee Address 1000 Throckmorton Street Fort Worth, Texas 76102 Effective Date: Witch April 16, 2012 Estimated Services Start Date : May 15, 2012 ROAM LICENSE ROAM ROAM, a division of Acuity Brands Technology Services, Inc. ROAM Address One Lithonia Way Conyers, Georgia 30012 Attn: Value Stream Leader, ROAM and DTL Initial Term: 36 months from the Effective Date or the Services Start Date, if later This ROAM License and Services Agreement ("Agreement"), dated as of the Effective Date, governs the use by Licensee of the ROAM system, consisting of intelligent photocontrol diagnostic devices and a system that communicates with such devices to enable remote monitoring and control for street and area lighting fixtures (collectively, the "ROAM® System"). This Agreement consists of these License Terms, including the Services Confirmation attached hereto as Exhibit A and the General Terms and Conditions attached hereto as Exhibit B. In the event of conflict among terms, the order of priority shall be these License Terms, the General Terms and Conditions and then the Services Confirmation. This Agreement shall continue for the Term. 1. Grant of License. Subject to the terms and conditions of this Agreement, including but not limited to the General Terms and Conditions, ROAM grants to Licensee a limited, revocable, nonexclusive, nontransferable license, during the Term, to use the following solely in connection with the ROAM intelligent photocontrol diagnostic devices purchased by Licensee: (i) the software and firmware programs incorporated into the intelligent photocontrols, master controllers and hand-held personal digital assistants provided hereunder; (ii) ROAM's web -based monitor and control management portal ("the "Portal"); and (iii) any related documentation (collectively, the "Programs"). 2. Term and Termination. The term of this Agreement shall commence on the Effective Date and, subject to earlier termination in accordance with the General Terms and Conditions shall continue for the Initial Term. Upon expiration of the Initial Term, this Agreement may be extended for individual one year renewal terms (each a "Renewal Term") upon the written agreement of the parties. The Initial Term and any such Renewal Terms shall collectively be referred to as the "Term". 3. Devices. Licensee has purchased or will purchase (a) intelligent photocontrols (each a "Node"), (b) master controllers configured to communicate with the ROAM network operations center (each a "Gateway") and/or (c) activation kit(s) (includes GPS receiver, PDA computer with barcode scanner, and accessories) or other devices (the "Devices") from a ROAM authorized supplier (the "ROAM Supplier"), as well as certain activation, training, consulting and deployment support services (the "Deployment Services") upon terms agreed between Licensee and the ROAM Supplier. The Devices shall be for use in connection with accessing the ROAM System and utilizing the Services (as defined below), for Licensee's internal business purposes. In the event any Devices are found to be defective in material and workmanship, Licensee's sole and exclusive remedy shall lie with the ROAM Supplier. Subsequent purchases of Devices shall also be made from ROAM directly, or from a ROAM Supplier, upon independently agreed terms, and the use of such Devices in connection with the ROAM System shall also be subject to the terms and conditions of this Agreement. 4. Portal Access. The Services Start Date is an estimated date. The actual Services Start Date will be the date of completion of ROAM Portal and Business Process Training. Commencing on or about the Services Start Date, Licensee will be provided access through the Portal to certain software products hosted by ROAM, for use in connection with the ROAM System (the "Software Services"), that include the features agreed by Licensee with the ROAM Supplier, not to exceed the features listed on Exhibit A. Licensee will be provided the number of Authorized User Licenses specified on Exhibit A. For each Authorized User License, Licensee will be provided a user name (User ID) and password, which enables the number of Licensee's authorized users with Authorized User Licenses to access the Portal and utilize the Software Services. 5. Services after First Year. Following the conclusion of the first year of the Initial Term of the Agreement (the "First Year"), ROAM shall provide to Licensee the Software Services in connection with the ROAM System that are listed on Exhibit A (the "Post First Year Services"), for the Fees specified on Exhibit A, as the same may be amended from time to time. 6. Fees. Licensee shall pay the ROAM Supplier fees that the ROAM Supplier and Licensee independently determine for use of the Devices, the Deployment Services and the Software Services to be provided by ROAM during the First Year. Licensee understands that ROAM will be compensated for its provision of Services to Licensee by the ROAM Supplier or its suppliers. Licensee shall not be obligated to pay any fees directly to ROAM during the First Year. Licensee shall pay Fees for Post First Year Services as specified on Exhibit A on an annual basis in advance. Terms of payment for any Fees payable by Licensee to ROAM will be net thirty (30) days after date of the invoice. Licensee shall remit payment to ROAM for the Fees payable to ROAM at the address listed on the invoice. Any amount not paid by Licensee to ROAM within thirty (30) days after the invoice date shall bear interest at the lesser of 1.5% per month or the highest rate allowed by applicable law. In addition to any other remedies that ROAM may have for late payment, failure to make timely payment shall permit ROAM, at its option, to suspend further service under this Agreement until the financial obligations and accounts are brought current by Licensee, provided that ROAM first gives ten (10) days written notice in order to permit Licensee to cure the default. No terms of any purchase order, confirmation, invoice form or other similar or preprinted form that conflict with the terms of this Agreement shall be effective with respect to use of the ROAM Services. 7. Insurance. ROAM shall maintain throughout the term of this Agreement (a) Workers' compensation insurance with statutory limits and employers liability insurance in an amount not less than $1,000,000; (b) comprehensive general liability insurance with a OFFICIAL. RECORD CITY SECRETARY FT. WORTH, TX 01 -1 5- 1 2 PO4 : 50 IN ROAM LICENSE combined single limit for bodily injury and property damage of not Tess than $5,000,000 per occurrence; (c) automobile liability insurance (owned, non -owned and hired), including personal injury and property damage, with a $500,000 combined single limit; and (d) errors and omissions insurance with a minimum limit per event of $3,000,000. All policies shall provide for contractual liability, shall name Licensee as an additional insured for clauses (b) and (c) and shall provide for not less than thirty (30) days prior written notice of cancellation, termination, or material change. Upon written request„ ROAM shall provide Licensee with a certificate evidencing this coverage. Licensee agrees and understands that ROAM is not an insurer and that insurance covering personal injury, including death, and real or personal property Toss or damage in, about or to the premises lighted by Licensee's Tight fixtures or lighting systems shall be obtained by Licensee in amounts required by law and as otherwise deemed prudent by Licensee. LICENSEE: By: 6044t—* Name: Ferngn ettifa.J Title: S a M f Date: C//C112Date: 47 floto A cit*** City Seen ,003.001 7flijJt (LW FIO XW&Cu1QUKRJUD ROAM: it nName. �/�-.�1fJ' MLA�' Title: \t P Date: ¶/t4/2d1t Sto&m, `APPROVED AS TO FORM n 1'1 ` iXT` Assistant City Attorney OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX ROAM LICENSE EXHIBIT A to ROAM LICENSE SERVICES CONFIRMATION FIRST YEAR DEPLOYMENT AND SOFTWARE SERVICES* Description S ERVICES Basic Street Light Monitoring and Manual Control Gateway Communication — Licensee Provided Ethernet Connection Work Order Management Custom Scheduling Authorized User License w/ Static Map Interface Portal and Business Process Training Activation Services S roject Management S upport Services Quantity 130 Nodes N/A 1 1 2 1 eight hour day onsite 1 Remote See para 9 POST FIRST YEAR SERVICES AND FEES (Per Year) ** Description S ERVICES Basic Street Light Monitoring and Manual Control Gateway Communication — Licensee Provided Ethernet Connection Work Order Management Custom Scheduling Authorized User License w/ Static Map Interface S upport Services Fee Measure Nodes x Year N/A Unit xYear Unit x Year Unit x Year for additional licenses Unit Quantity 130 N/A 1 1 1 included and one additional See para 9 Total Fees Per Year $169.00 N/A $550.00 $550.00 $100.00 BASIC MONITORING. The Services include access by Licensee through the ROAM Licensee Web -based Portal to the following features: • All Licensee's ROAM data • Location -based lighting asset management information • Map -enabled monitoring and reporting • Work order tracking The Services also include the following managed services: • Network administration, including communications between the Gateway and the network operations center through cellular wireless transmission or Licensee provided Ethernet connection • Software administration • Data administration • Periodic over -the -air firmware upgrades ROAM LICENSE MANUAL CONTROL. The Services include access by Licensee through the Portal to manually control its lighting assets on a location basis, if not deactivated at the request of Licensee. WORK ORDER MANAGEMENT: These Services consist of access by Licensee to Web -based work order management. This module enables Licensee to create and manage work orders for lighting assets through the Portal 4. CUSTOM TIME OF DAY AND EVENT BASED SCHEDULING. These Services consist of access to Web -based automated control of location -based lighting management information. This module enables Licensee to control its lighting assets through the Portal as follows: • Turn Licensee selected individual and groups of lights on and off • Set a schedule of operation for Licensee selected individual and groups of lights. 5. AUTHORIZED USER LICENSE (WEB PORTAL). The Authorized User License for one user includes on -going hosting enabling access to the Portal. This Static Map Interface License includes a static image of the location of Licensee's lighting assets, developed using drawings or photographs provided by Licensee. 6. PORTAL AND BUSINESS PROCESS TRAINING. These Services are focused on the integration of ROAM Portal functionality and diagnostic information into existing Licensee processes, as well as recommendations to optimize Licensee business processes around Portal presentation. These Services also include training of Licensee employees and/or their representatives regarding use of the Portal and reports, scheduling and commands, processes and procedures related to responding and troubleshooting lighting system outages indicated by the ROAM System. 7. ACTIVATION SERVICES. These Services consist of activation (electronic or manual entry as applicable) of asset GPS location, unique ROAM device identification and Licensee defined asset attributes. 8. PROJECT MANAGEMENT These Services consist of training of Licensee employees and/or their representatives in the areas set forth below. • Installation and activation processes and procedures for ROAM equipment • Use of devices such as PDAs and GPS equipment necessary to install, activate and maintain ROAM equipment, if applicable. 9. SUPPORT SERVICES. Support Services include unlimited remote service and support during normal business hours (7 AM - 5 PM Eastern Time, excluding ROAM holidays) and 24x7 for emergency support. Licensee will designate one individual who will be the authorized point of contact for all technical support communications between ROAM and Licensee at all times. ROAM will use commercially reasonable efforts to keep the ROAM System available on a 24 hour a day, 7 day a week basis, via web site access utilizing the Minimum Configuration, subject to occasional scheduled downtime (during non -working hours, for short periods of time, typically on Sundays between 6 AM and 2 PM Eastern Time and communicated by email to the authorized point of contact in advance) for maintenance purposes, unforeseen maintenance and systems outages, or routine testing of the Services. As used herein, "Minimum Configuration" means the minimum configuration of client hardware and software required to access the Services, which, shall be that users have an Internet connection and Internet Explorer 7.0 or higher version. *Information has been provided by ROAM Supplier and is subject to final agreement between Licensee and ROAM Supplier. **Subject to change in the event that there is a modification to the First Year Services being purchased. ROAM LICENSE EXHIBIT B TO ROAM LICENSE ROAM LICENSE GENERAL TERMS AND CONDITIONS (NON-STANDARD) 1. Roam System License. 1.1 The Programs are proprietary products of ROAM and its licensors, and are protected under applicable patent, copyright and/or trade secret laws. All right, title and interest in and to the Programs shall remain with ROAM and its licensors. The Agreement does not constitute a sale of the Programs, but only conveys to Licensee a limited right to use the Programs in accordance with the terms of the Agreement. ROAM and its licensors retain all rights in the Programs not expressly granted. 1.2 Except as expressly permitted herein, Licensee may not: (i) alter, modify, copy, disassemble, decompile, reverse engineer, create derivative works from, or sell, sublicense, rent, or otherwise transfer to any other person or entity, the Programs; (ii) provide, disclose, divulge or make available to, or permit use of the Programs by any third party; (iii) copy or reproduce all or any part of the Programs; (iv) engage in fraudulent, illegal or unauthorized use of the Programs; or (v) introduce into or transmit through the Programs any virus or worm. 1.3 Licensee shall not alter or remove any proprietary notices or waming labels included in, on or in connection with a Program. 1.4 Licensee's right to use the Programs shall terminate upon Licensee's failure to comply with any term or condition of the Agreement. Upon termination of the licenses granted herein, Licensee must cease all use of the Programs. 1.5 Licensee may not provide any person who is not an authorized user its access code(s) or passwords required to access and use the Programs. Licensee further agrees to take reasonable measures to protect the Programs from, and will be solely liable for, any unauthonzed use, reproduction, display, publication, disclosure or distribution by Licensee, its affiliates, agents, and any other person who obtains access to any such access code or password in any manner through any of the same, except to the extent Licensee provides ROAM written notice of such unauthorized use promptly after discovery and ROAM fails to use reasonable measures to mitigate any further damages. 2. Roam System Services. 2.1 ROAM may use subcontractors to perform the Services under the Agreement. If ROAM uses subcontractors for the performance of Services, ROAM will remain responsible for its obligations under the Agreement. 2.2 Service Order. ROAM shall perform the Services at ROAM's facilities and/or the Sites, except as otherwise expressly provided in a particular 2.3 Licensee shall be responsible for providing personnel to obtain and act on the information available on ROAM's web -based monitor and control management portal. 2.4 Licensee shall provide such information and assistance as are reasonably requested by ROAM for purposes of providing the ROAM System and Services. 2.5 Unless otherwise agreed in writing, ROAM is not responsible for removal from Licensee's lighting fixtures and disposal of existing photocontrols and related diagnostic devices. 2.6 The Services include standard software upgrades to the Programs, which may include bug -fixes, enhancements and improvements, but which do not include additional functionality sold by ROAM to its customers in general as a separate module. It excludes any special projects for Licensee or additional modules not shown in the applicable Service Order. 2.7 Licensee acknowledges that since the Internet is neither owned nor controlled by any one entity, ROAM makes no guarantees that any given user will be able to access the Services at any given time, and ROAM shall not be liable to Licensee for failure of accessibility to the Services. 3. Other Terms and Conditions. 3.1 No ownership rights to any Programs incorporated into the Devices are transferred under the Agreement or any agreement with the entity from whom Licensee purchased the Devices. 3.2 Title and risk of loss with respect to the Devices shall transfer to Licensee as provided in Licensee's agreement with the entity from whom Licensee purchased the Devices. 3.3 Any additional costs of complying with federal, state or local regulations implemented after the date of the Agreement will be added to the fees payable by Licensee. 3.4 Licensee shall not use, or allow any third -party to use, the ROAM System except for Licensee's own use of the ROAM System and receipt of the Services. Licensee shall not allow any third -party, other than an active maintenance contractor, to use the ROAM System without ROAM's consent in writing. Licensee shall be liable for compliance of all maintenance contractors with the terms of this Agreement.. 3.5 Licensee shall advise ROAM of any networking, monitoring or communication systems/devices installed on the Sites that could potentially interfere with the ROAM System so that ROAM may evaluate such systems/devices for possible conflicts .that could affect the performance of the ROAM System. 3.6 Licensee shall retain exclusive ownership rights over its proprietary business data, information and strategy and shall own all data or other information entered by Licensee in conjunction with the use of the ROAM System and/or Services. ROAM shall have the right to use any data generated in connection with or relating to the operation of the ROAM System and/or Services for purposes of performing its obligations under the Agreement and, provided that such data is only disclosed by ROAM on an aggregated basis, such as by market verticals or general population, and Licensee and its Sites are not identified, for purposes of improving and marketing the ROAM System. ROAM LICENSE 4. Termination. 4.1 If ROAM terminates the Agreement (other than by reason of Licensee's breach of a material obligation), the parties agree to the following as Licensee's sole remedy in such an event. ROAM will provide Licensee with all relevant Licensee data and all Licensee work processes and work flows that are in ROAM's possession (or the possession of any approved subcontractor). 4.2 Notwithstanding any other provision of the Agreement, either party may immediately terminate the Agreement, without liability, by giving written notice to the other party under the following circumstances: (a) If the other party becomes insolvent, or any voluntary or involuntary petition in bankruptcy or corporate reorganization is filed by or against such other party, or a receiver is appointed with respect to any other assets of such other party or liquidation proceeding or its equivalent is commenced by or against such other party and such matter is not dismissed within sixty (60) days after filing. However, the Agreement shall not terminate in the event either party has filed for bankruptcy under Chapter 11 of Title 11 of the U.S. Code, and such party files a motion with the United States Bankruptcy Court seeking the approval of the assumption of the Agreement pursuant to Section 365 thereof within sixty (60) days of the filing, or (b) If the other party fails to perform any of the material obligations under the Agreement and such failure is not cured within thirty (30) days after the defaulting party's receipt of written notice from the non -defaulting party requesting a remedy thereof; or if it is not possible to cure within thirty (30) days of notice from the non -defaulting party, the defaulting party fails to commence to cure the breach within thirty (30) days or fails to continue diligent efforts to complete the cure as soon as reasonably possible, not to exceed ninety (90) days. (c) Notwithstanding any other provision in the Agreement, Licensee shall have the right to terminate the Agreement, without cause, by providing no less than sixty (60) days written notice of termination to ROAM; provided, however, that Licensee shall not be entitled to seek any refund or other remedies in the event of early termination, without cause, under this Section 4.2(c). 4.3 Any such termination of the Agreement, shall be without prejudice to any other rights or remedies which any party may have against the other party arising out of such breach or default and shall not affect any rights or obligations of any party arising under the Agreement, prior to such termination. 4.4 Upon the termination of the Agreement, the provisions thereof shall be of no further force or effect except as to obligations accrued prior to the date of termination and provisions intended by their nature to survive the expiration or termination. 5. Representations and Warranties 5.1 ROAM represents and warrants to Licensee that (i) it has the right and authority to enter into the Agreement and to conduct its activities as contemplated by the Agreement; and (ii) the Services shall be performed in a professional and workmanlike manner and in conformance with the mutually agreed upon written specifications set forth in the Order Form, if any (the "Specifications"). 5.2 Licensee represents and warrants to ROAM that (i) the business premises where the Services are to be conducted shall be free from any hazardous conditions, property, or equipment that might render the premises unsafe for performing the Services; (ii) it has the right and authority to enter into the Agreement and to conduct its activities as contemplated by the Agreement; (iii) Licensee will only use the ROAM System and Services for lawful purposes and will not violate any law of any country or the intellectual property or other rights of any third party in connection with its use of the ROAM System and Services; (iii) Licensee will comply with the provisions of the Agreement regarding proper use of the Programs, and also will not sell or give away the Devices to any third party, nor alter, modify, disassemble, or reverse engineer the Devices, and will use them only as expressly provided in the Agreement; (iv) only trained and knowledgeable personnel of Licensee shall use and maintain Devices; and (v) Licensee shall be responsible for providing personnel to obtain and act on the information available on ROAM's web -based monitor and control management portal. 5.3 In the event any Services fail to comply with the warranties of this Section, Licensee's sole and exclusive remedy shall be that ROAM will use reasonable commercial efforts to re -perform any Services performed in a manner that is substantially less than professional and workmanlike or not in conformance with the Specifications, at no additional cost to Licensee, provided that Licensee notifies ROAM of the nonconformity within 90 days of performance of the Services. If ROAM is unable to re -perform any nonconforming Services with respect to which it receives timely notice within a reasonable period of time in accordance with its warranty, ROAM shall refund to Licensee any amounts paid by Licensee and/or waive the fees otherwise payable with respect to any such non -conforming Services. 5.4 ROAM will pass through to Licensee any warranties available from its third party PDA suppliers, to the extent that ROAM is permitted to do so under its contracts with those suppliers. 5.5 THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE TO THE FULLEST EXTENT PERMITTED BY LAW. ROAM MAKES NO REPRESENTATION OR WARRANTY THAT THE PERFORMANCE OF THE DEVICES, PROGRAMS AND/OR ROAM SYSTEM WILL OPERATE ERROR -FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT SUCH SYSTEM IS COMPATIBLE WITH ANY PARTICULAR APPLICATIONS OR PLATFORMS OTHER THAN THOSE PROVIDED OR SET FORTH IN THE DOCUMENTATION FOR SUCH SYSTEM. ROAM DOES NOT WARRANT THAT ANY NONCONFORMANCES IN SUCH SYSTEM WILL BE CORRECTED. ROAM WILL NOT BE RESPONSIBLE FOR (1) SERVICE IMPAIRMENTS CAUSED BY ACTS OR OMISSIONS WITHIN THE CONTROL OF LICENSEE, ITS EMPLOYEES, AGENTS, SUBCONTRACTORS, SUPPLIERS, OR CUSTOMERS, (2) INTEROPERABILITY OF SPECIFIC LICENSEE APPLICATIONS, OTHER THAN THOSE SET FORTH IN THIS AGREEMENT OR A SERVICE ORDER, (3) INABILITY OF LICENSEE TO ACCESS OR INTERACT WITH ANY SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT CONSTITUTE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET, (4) INTERACTION WITH OTHER SERVICE PROVIDERS, NETWORKS, USERS OR INFORMATIONAL OR COMPUTING RESOURCES THROUGH THE INTERNET, (5) SERVICES PROVIDED BY OTHER SERVICE PROVIDERS, OR (6) PERFORMANCE IMPAIRMENTS CAUSED OUTSIDE THE ROAM SYSTEM ON THE INTERNET. LICENSEE EXPRESSLY ACKNOWLEDGES THAT THE PERFORMANCE OF THE DEVICES, PROGRAMS AND/OR ROAM SYSTEM MAY BE AFFECTED BY, AND ROAM SHALL HAVE NO LIABILITY DUE TO, SITE CONDITIONS AND OTHER FACTORS BEYOND ROAM'S REASONABLE CONTROL, INCLUDING WITHOUT LIMITATION, HEAVY TREE COVER, LOW VOLTAGE OR POWER QUALITY IN LICENSEE'S LIGHTING GRID, OR RADIO INTERFERENCE. ROAM LICENSE 6. Indemnification. 6.1 Provided that ROAM has sole control of such defense and/or settlement and Licensee does not take a position adverse to ROAM, to the fullest extent permitted by law, ROAM shall indemnify and hold Licensee and its officers, directors, employees, agents and representatives harmless from and against all costs, liabilities, expenses (including without limitation attorneys' fees), and obligations resulting from or in connection with any third party claim for personal injury, death, or physical property damage to the extent such personal injury, death or physical property damage is directly caused by ROAM's negligence in: (i) the installation of the Devices (if any); or (ii) the handling, storage, transport or disposal of the Devices as delivered to Licensee hereunder. The foregoing indemnification shall not apply to any liability, loss, damage or injury due to the failure or inadequacy of Licensee's light fixtures, lighting system, or maintenance thereof or to the extent any liability, loss, damage or injury results from the negligence or willful misconduct of Licensee (or its other contractors) or its failure to monitor the information available on the Portal. Licensee shall be responsible for providing personnel to obtain and act on the information available on the Portal. In the event such damage or injury is caused by the joint or concurrent negligence of Licensee (or its other contractors) and ROAM (or its subcontractors), the loss or expense shall be borne by each parry in proportion to its degree of negligence or the degree of negligence of such party or its contractors/subcontractors. 6.2 Provided that ROAM has sole control of such defense and/or settlement and Licensee does not take a position adverse to ROAM, ROAM shall indemnify, defend, or at its option settle, any claim or suit against Licensee on the basis of infringement of any patent, trademark, copyright or trade secret by the Programs (excluding any third -party Programs in the PDAs) and pay any final judgment entered against Licensee on such issue in any such proceeding. If any part of a Program is, or may become, the subject of any such proceeding, ROAM may at its expense and option procure for Licensee the right to use the Program or the affected part thereof; replace the Program or affected part thereof with other suitable programs; modify the Program or affected part thereof to make it non -infringing; or if none of the foregoing remedies are commercially feasible, terminate the Agreement and (i) refund to Licensee any pre -paid fees for Services that use any allegedly infringing Programs and that have not been performed or (ii) provide a reasonable depreciated or pro rata refund for such allegedly infringing Programs, as applicable. This indemnity shall not apply to any Program that is altered or modified by any person or party that is not ROAM or the use of Programs furnished under the Agreement in conjunction with any material or apparatus not furnished by ROAM under the Agreement. This section states the entire liability of ROAM with respect to any claim of infringement. 6.3 The indemnified party shall promptly notify the indemnifying party of such indemnification claim and fumish the indemnifying party with copies of all suit papers relating thereto, if applicable. The indemnified party shall cooperate with the indemnifying party in the defense of such claims or suits. 7. Limitation of Liability. EXCEPT FOR THEIR RESPECTIVE INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT, WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) SHALL EITHER PARTY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND INCLUDING FOR LOSS OF REVENUE, LOSS OF BUSINESS, LOST PROFITS, OR COST OF COVER, PROCUREMENT OF SUBSTITUTE PRODUCTS, DAMAGE TO OR LOSS OF EQUIPMENT OR PROPERTY; LOSS OF USE; OR INCREASED COSTS OR OTHER FINANCIAL LOSS OF ANY KIND, INCLUDING BUT NOT LIMITED TO CAPITAL COST, OR CLAIMS OF LICENSEES CUSTOMERS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. THE PARTIES FURTHER ACKNOWLEDGE AND AGREE THAT LICENSEE IS SOLELY RESPONSIBLE FOR THE OPERATION AND MAINTENANCE OF ITS LIGHTS AND LIGHTING SYSTEM AND ROAM SHALL HAVE NO LIABILITY IN CONNECTION WITH ANY FAILURE OR IMPROPER MAINTENANCE OF LICENSEES LIGHT FIXTURES OR LIGHTING SYSTEM. EXCEPT FOR PERSONAL INJURY OR DEATH, OR DAMAGE TO ANY REAL OR TANGIBLE PERSONAL PROPERTY, TO THE EXTENT THAT SUCH INJURY, DEATH OR DAMAGE IS DIRECTLY CAUSED BY ROAMS NEGLIGENT ACTS OR OMISSIONS OR WILLFUL MISCONDUCT WHILE IT IS PERFORMING ITS OBLIGATIONS PURSUANT TO THE AGREEMENT, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF ROAM IN CONNECTION WITH ANY ACTIONS OR PROCEEDINGS EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE TO OR FOR THE BENEFIT OF ROAM FOR THE SERVICES PROVIDED IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM FOR DAMAGES. 8. Confidentiality. 8.1 As used in the Agreement, the term "Proprietary Information" means all information, whether or not reduced to writing, related to the business of either party or its affiliates that: (i) is disclosed by one party or its Representatives (as defined below) (the "Disclosing Party") to the other party (the "Recipient") or observed by the Recipient on the Disclosing Party's premises, and (ii) is identified as confidential by the Disclosing Party, or would otherwise reasonably be understood to be confidential under the circumstances. Proprietary Information includes but is not limited to data (technical and non -technical), formulae, patterns, compilations (including compilations of customer information), programs (including models), devices, methods (induding design methods), techniques, drawings (including equipment drawings), processes, financial information (including sales forecasts), lists of actual or potential customers or suppliers (including identifying information about those customers), operational information, planning or strategy information, research and development information, information about existing and future products, and information about personnel matters of the Disclosing Party or its affiliates. Proprietary Information also includes information disclosed to the Disclosing Party by a third party that the Disclosing Party is legally obligated to maintain in confidence. 8.2 For purposes of the Agreement, the term "Proprietary Information" does not include any data or information which: (i) the Recipient can establish was already known by the Recipient at the time of disclosure hereunder by the Disdosing Party; (ii) is or becomes generally known to the public other than as a result of a disclosure by the Recipient; (iii) is received by the Recipient from a third party, without restriction on disclosure, and without breaching any obligation of confidentiality about which the Recipient knew or should have known; or (iv) is independently developed by the Recipient without use, directly or indirectly, of information received from Disclosing Party, as demonstrated from the written records of the Recipient. 8.3 Licensee is a govemmental entity and as such is subject to the requirements of the Texas Public Information Act, TEX. GOV'T CODE, Ch. 552. Unless otherwise inconsistent with the requirements of the Texas Public Information Act, each of the parties hereto agrees to use the same care and discretion as it employs with its own confidential and proprietary information (but in no event less than reasonable care and discretion) to maintain in confidence, and prevent disclosures of, the Proprietary Information, and shall not use the Proprietary Information except in connection with performance of the Services or as otherwise specifically authorized herein or in writing by the Disclosing Party. Disclosures of the Proprietary Information of the Disclosing Party may be made only to affiliates, employees, agents, advisors or independent contractors of the Recipient who are directly involved in performing Recipient's obligations under the Agreement, and who have a specific need to know such ROAM LICENSE information, and who are obligated to hold the information in confidence and otherwise to comply with the terms of the Agreement (collectively, °Representatives"). The Recipient shall be liable for any unauthorized disclosures of Proprietary Information by the Recipient's Representatives. The obligations of confidentiality set forth in this Section shall commence on the date hereof and shall continue with respect to Proprietary Information which qualifies as a trade secret under applicable law, at all times thereafter, and with respect to all other Proprietary Information, for a period of two (2) years after the date of disclosure of such information. 8.4 Unless otherwise inconsistent with the requirements of the Texas Public Information Act, if Proprietary Information is required to be produced by law, court order or governmental authority, the Recipient must promptly notify the Disclosing Party of that obligation. The Recipient shall not produce or disclose any such Proprietary Information until the Disclosing Party has: (r) requested protection from the court or other legal or govemmental authority issuing the process (with the reasonable assistance of the Redpient) and the request has been denied; (ii) consented in wnting to the production or disclosure of such Proprietary Information, or (iii) taken no action to protect its interest in the Proprietary Information within ten (10) business days (or such shorter period required by order of a court or other legal or governmental authority) after receipt of notice from the Recipient of the obligation to produce or disclose. Notwithstanding the foregoing, the Recipient shall only disclose the minimum portion of the Disclosing Party's Proprietary Information which the Recipient is advised by counsel is required for the Recipient to comply with law. Subject to the foregoing requirements, nothing in the Agreement shall prohibit Licensee from disclosing any Proprietary Information of ROAM if required by the Texas Public Information Act. 8.5 Unless otherwise inconsistent with the requirements of the Texas Public Information Act or other laws, regulations or requirements goveming Licensee, including records retention requirements, within ten (10) days following the Recipient's receipt of a written request from the Disclosing Party, the Recipient must: (i) deliver to the Disclosing Party all tangible materials containing or embodying the Proprietary Information; and (ii) purge all electronic materials containing or embodying the Proprietary Information, and certify the same to the Disclosing Party in writing. Nothing in this Confidentiality section shall restrict ROAM's use of aggregated data as permitted pursuant to the Agreement or require ROAM to purge such data. Notwithstanding the foregoing delivery requirement, the Recipient may destroy any notes, analyses, or reports generated by the Recipient to the extent such notes, analyses, or reports contain Proprietary Information, and the Recipient shall certify such destruction within such ten (10) day period. 9. Dispute Resolution. 9.1 All disputes arising in connection with the Agreement shall be settled, if possible, by negotiation of the parties within ten (10) business days. If the matter is not resolved by such negotiations, either party may, by the giving of written notice, cause the matter to be referred to a meeting of appropriate higher management of the Parties. Such meeting shall be held within ten (10) business days following the giving of the written notice. If the matter is not resolved within twenty (20) business days after the date of the notice referring the matter to appropriate higher management, or such later date as may be mutually agreed upon, the dispute may be submitted to non -binding mediation at the mutual agreement of the Parties. In the event of mediation, mediator fees shall be shared equally by the parties. If the matter is not resolved through such mediation (or within twenty (20) business days after the date of the notice referring the matter to appropriate higher management, or such later date as may be mutually agreed upon, if there is no mediation), either party may then, subject to the terms of the Agreement, commence legal action in a court of competent jurisdiction in order to resolve the dispute. Notwithstanding the foregoing, each party shall have the right at any time, at its option and where legally available, to commence an action or proceeding in a court of competent jurisdiction, subject to the terms of the Agreement, in order to seek and obtain a restraining order or injunction to enforce the confidentiality or intellectual property provisions set forth in the Agreement. 10, Notices. All notices, requests, demands, and other communications under the Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given; on the day after delivery to Federal Express or similar overnight courier or the Express Mail service maintained by the United States Postal Service; or upon receipt if mailed to the party to whom notice is to be given, by first class mail, registered or certified, postage prepaid and properly addressed, to the party as the address specified above. Any notices to ROAM shall also be copied to General Counsel at the same address. Rejection or other refusal to accept, or the inability to deliver because of changed address, shall be deemed to be receipt of the notice sent as provided in this Section. Any party may change its address or other information included in this Section by giving the other party written notice of such change in the manner set forth above. 11. Assignment. Neither the Agreement, nor any of the rights or obligations under the Agreement, may be assigned or otherwise transferred (including by operation of law) by either Party without the prior written consent of the other Party, which shall not be unreasonably withheld; except that ROAM may assign the Agreement without consent to any entity directly or indirectly controlling, controlled by or under common control with ROAM and to any entity that acquires all or substantially all of the assets of ROAM to which the Agreement relates. Any assignment in violation of the foregoing shall be null and void. 12. Compliance with Laws. Each party shall comply with all applicable federal, state and local laws, rules and regulations, with respect to the marketing, sale and use of the Services supplied to Licensee hereunder. Each party shall procure all required licenses and permits and pay all fees and other charges related thereto. Each party shall comply with all applicable federal, state and local laws, rules and regulations, with respect to the manufacturing, packaging, handling, storage, sale, marketing, use, transportation and disposal of the Devices supplied to Licensee and its customers hereunder. Each party shall only use, distribute, transfer or transmit the Devices, Programs or technical information (even if incorporated into other products) in compliance with all applicable export regulations. 13. Force Majeure. Except for Licensee's obligation to make any payment pursuant to the Agreement, neither Licensee nor ROAM will have any liability or be considered to be in breach or default of its obligations under the Agreement to the extent performance of such obligations is delayed or prevented, directly or indirectly, due to: causes beyond its reasonable control; or acts (or failure to act) of govemmental authorities or third parties not engaged by the party claiming the delay, fires, earthquakes, explosions, flood or other natural disasters, acts of nature, strikes or other labor disturbances, floods, war (declared or undeclared), armed conflict, acts or threats of terrorism. The party claiming that an event causing a delay has occurred will notify the other party of such event as soon as practicable. The date of delivery or performance will be extended for a period of time equal to the time lost by reason of such event. ROAM LICENSE 14. Miscellaneous. 14.1 No Agency or Partnership. Nothing in the Agreement is intended to or shall give rise to any relationship of partnership or profit sharing in the nature of partnership between the parties hereto. Save as otherwise expressly provided for in the Agreement or unless otherwise agreed between the Parties in writing, neither Party shall make purchases or sales or incur any liabilities whatsoever on behalf of the other; or hold itself out as acting agent for the other party. 14.2 Further Assurances. Each of the Parties hereto from time to time at the request and expense of the other Party hereto and without further consideration, will execute and deliver such other instruments of transfer, conveyance and assignment and take such further action as such other party may require to more effectively complete any matter provided for herein. 14.3 Governing Law. The Agreement is governed by and construed in accordance with the laws of the State of Texas, without regard to its choice of law principles. 14.4 Publicity. Licensee agrees that ROAM may refer to it in sales presentations, customer lists, marketing vehicles and other activities, but Licensee shall not be obligated to respond to requests for references by other prospective ROAM customers. Marketing Materials may not include Licensee's logo without Licensee's express written consent. 14.5 Attomey Fees. In the event of any arbitration or litigation involving the Agreement, each party shall be liable for its own attorney fees and costs associated with such arbitration or litigation. 14.6 Waiver. Failure or delay by either party to enforce compliance with any term or condition of the Agreement or to enforce its remedies for any existing breach or violation hereof or for any prior breach or violation hereof shall not constitute a waiver of such term or condition or of its rights with respect to any said existing breach or with respect to any subsequent breach or violation hereof. No waiver of any of the provisions of the Agreement shall be deemed, or shall constitute, the waiver of any other provision, or subsequent default, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing and signed by an authorized representative of the party waiving the provision. 14.7 Entire Agreement. Notwithstanding any provision or reference in the Agreement to the contrary, the Agreement, including the ROAM License, these Exhibit B - General Terms and Conditions, and the Exhibit A - Services Confirmation, contains the entire understanding of the parties relating to the subject matter contained herein and supersedes all prior negotiations, agreements and understandings, written or oral, relating to the subject matter hereof. There are no promises, covenants, or inducements other than those expressly set forth herein or expressly incorporated herein. 14.8 Accrued Obligations. Termination of the Agreement shall not relieve the parties from the obligations that have accrued prior to such termination pursuant to the provisions of the Agreement. 14.9 Amendment. The Agreement cannot be modified, amended, or terminated except in writing signed by authorized representatives of both parties. 14.10 No Third Party Beneficiary. This Agreement does not provide any third party with any remedy, claim, liability, reimbursement, cause of action or other right or privilege. 14.11 Severability. Each and every provision of the Agreement is completely severable, and the invalidity of any one or more of such provisions shall not in any way affect the validity of the Agreement or any of the other provisions hereof. Accordingly, if any provision of the Agreement or the application thereof to any person or circumstances shall be invalid or unenforceable to any extent, that provision will be amended or deleted so as to best accomplish the objectives of and the same economic effect as the original provision and the remainder of the Agreement and the application of such provisions to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law. 14.12 Successors. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted assigns and successors -in -interest in all the business or assets to which the Agreement pertains. 14.13 Survival. Any provisions of the Agreement that are provisions that by their nature or purpose are intended to survive the expiration or termination of the Agreement shall continue in full force and effect after termination.