Agenda 06/28/2011 Item #16C5
6/28/2011 Item 16,C.5,
EXECUTIVE SUMMARY
Recommendation to waive competition and authorize a sole source contract renewal of $55,832 with
GE Intelligent Platforms for utility facilities control system software support. This sofn\'are is used in
all Public Utilities Division treatment plants and distribution systems to control, monitor, and manage
critical processes. Funding is 8,,'ailable in Projects 72541 and 71056.
OBJECTIVE: To renew existing software licensing for Supervisory Control and Data
Acquisition (SCADA) systems used to manage and ensure compliance, and sustain level of
service standards for all raw water treatment and distribution, and wastewater treatment
and plant operations.
CONSIDERATIONS: On June 24, 2008, Agenda Item lOG, the Board of County
Commissioners (Board) adopted the 2008 Water Master Plan Update and 2008 Wastewater
Master Plan update that identified the requirements to maintain a compliance driven
SCADA program, The proposed scope of work is consistent with the 2008 Water Master
Plan Update, Project 71056 "Water SCADA Software and Support Renewal" Section 8,
Table 8-2, page 3 of 5, line 91, as well as the 2008 Wastewater Master Plan Update,
Project 7254l "Wastewater SCADA Software and Support Renewal" Section 8, Table 8-2,
page 3 of 5, line 71. The projects are also consistent with the 20l 1 Potable Water CIP
Update, page 3 of 4, line 90, as well as the 201 1 Wastewater CIP Update, page 3 of 4 line
1 07 as identified in the 2011 User Fee Rate Study,
-
The Public Utilities Division (PUD) utilizes SCADA systems to operate, control, monitor,
and maintain all critical and dynamic processes required to provide and sustain compliant
water delivery and wastewater recovery at our four existing treatment plants (two water,
two wastewater); in two pressurized distribution systems (water and irrigation quality
water); and at the Collier County Landfill. The SCADA system operates and manages
specific processes at the individual plant sites by communicating with sensors and control
devices over a communication network and then back to a central computer. The central
computer then displays the process data in graphical or tabular formats for the operations
personnel to view and make decisions in real time to maintain compliance.
The SCADA system utilizes computers, software, communications lines, and electronic
field data collection. There are 52 concurrent SCADA licenses used on these systems
operating 24 hours a day, 365 days a year. These systems must meet not only existing
Collier County Information Technology (IT) policies, but also federal Homeland Security
standards, and other regulatory security and opcrating permit governanccs.
The existing SCADA systems, and the contracts for support of the systems, are provided
by GE Intelligent Platforms. GE Intelligent Platforms is the sole manufacturer of the iFIX
platfonll that is integrated throughout all of the PUD's product lines. Furthermore,
GrayMatter Systems is the only authorized representative in Florida for the iFlX platform.
Please refer to the attachments for the sole source letter from GE Intelligent Platforms
detailing both of these facts.
-
The recommended contract renewal provides the specific licensing needed for the
continued operability of the specific SCADA systems. As the standards are changed or
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6/28/2011 Item 16.C.5,
updated, the software must migrate to those changes. Contract renewal ensures the
existing installations of the software are maintained to comply with all required regulations
without increasing the risk of noncompliance. The renewal also provides the PUD the
oppmiunity to maintain an industry standard approach to versioning and software platfonn
acceptance by removing the cost of complete rcdeployment of new SCADA hardware and
software.
The contract renewal will cover all 52 installed licenses in all product lines. The cost for
the maintenance of these licenses is $49,732 annually, with a onetime additional hardware
and licensing purchase of $6,100, The total amount of the contract is $55,832. The
contract is based on a per unit amount. The contract will not increase annually, The
annual contract dollar amount will decrease as the number of licensing units decreases.
The five year projection is to have less than 30 units licensed; a decrease of nearly 50
percent.
Section V(A)(4) of the Collier County Purchasing Policy authorizes the Board to waive
formal competition if it is in the best interest of the county; Section V(C) authorizes a
waiver for single source commodities. Staff recommends that the Board waive formal
competition and authorize this sole-source contract renewal for the reasons stated above
and in the attached Business Case.
FISCAL IMPACT: Funding is available in and is consistent with the FYl 1 Capital
Budget approved by the Board on September 23, 2010. The source offunding is the Water
User Fee Fund (412) and the Wastewatcr User Fee Fund (414).
GROWTH MANAGEMENT IMPACT: This project meets current Growth
Management Plan standards to ensure the adequacy and availability of viable pub I ic
facilities.
LEGAL CONSIDERATIONS: This item has been reviewed and approved by the
County Attorney's Office, is legally sufficient for Board action, and only requires a
majority vote for Board approval--SR T.
RECOMMENDATION: That the Board of County Commissioners, as Ex-officio
Governing Board of the Collier County Water-Sewer District, approve the sole-source
contract renewal of $55,832 with GE Intelligent Platfonns for the Protlcy HMIISCADA -
iFIX Software, and authorize the Chairman to sign the attached contract subject to the
County Attorney's Office's final review after execution by the vendor.
Prepared by: Aaron Cromer, Principal Project Manager, Planning and Project Management
Department, Public Utilities Division
Attachments: Sole Source letter from GE Intelligent Platforms, iF1X Business Case, and
proposed contract.
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6/28/2011 Item 16.C.5.
COLLIER COUNTY
Board of County Commissioners
Item Number:
16.C.5.
Item Summary: Recommendation to waive competition and authorize a sole source
contract renewal of $S5,832 with GE Intelligent Platforms for the Proficy HMI/SCADA - iFIX
Software utilized as standard Supervisory Control and Data Acquisition deployment by the
Public Utilities Division, funding provided under Projects 72541 and 71056.
Meeting Date:
6/28/2011
Prepared By
Name: CromerAaron
Title: Project Manager, Principal, Public Utilities Engineering
5/23/2011 4:28:44 PM
Approved By
Name: Paul Mattausch
Title: Director - Water,Water
Date: 5/16/2011 8:56:03 AM
Name: Steve Messner
Title: Plant Manager,Water
Date: 5/26/201 I 8:56:] 1 AM
Name: Chme1ikTom
Title: Project Manager, Principal,PubJic Utilities Engine
Date: 5/26/10] 14:46:13 PM
Name: WidesTom
Title: Director - Operations Support - PUD,Utilities Fina
Date: 5/27110] 1 8:40:] 3 AM
Name: HapkeMargie
Title: VALUE MISSING
Date: 5/27/1011 10:33:01 AM
Name: Johnson Scott
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6/28/2011 Item 16.C.5.
Title: Purchasing Agent.Purchasing & General Services
Date: 5/27/2011 2:52:02 PM
Name: Carnell Steve
Title: Director - Purchasing/General Services,Purchasing
Date: 5/31/20117:59:15 AM
Name: YilmazGeorge
Title: Director - Wastewater,Wastewater
Date: 5/3]/20119:40:24 AM
Name: TeachScott
Title: Deputy County Attomey,County Attorney
Date: 6/2/2011 ]0:25:41 AM
Name: KlatzkowJeff
Title: County Attorney,
Date: 6/3/2011 3:19:40 PM
Name: UsherSusan
Title: Management/Budget Analyst, Senior, Office of Manage
Date: 6/8/20118:18:49 AM
Name: GreenwaldRandy
Title: Management/Budget Analyst.Office of Management & B
Date: 6/8/2011 9:37:07 AM
Name: OchsLeo
Title: County Manager
Date: 6/20/2011 10:02:52 PM
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6/28/2011 Item 16.C.5,
COLLIER COUNTY GOVERNMENT
PUBLIC UTILITIES PLANNING AND PROJECT MANAGEMENT DEPARTMENT
BUSINESS CASE FOR:
Approve sole source contract renewal with GE Intelligent Platforms for the
Proficy HMI/SCADA - iFIX Software utilized as standard SCADA deployment by
Public Utilities Division.
Project #
FY2011 Budgeted Amount: $67,000
FY2011 Actual Amount: $ 55,832
1. Approval of sole source contract renewal with GE Intellioent Platforms for the Proficv
HMI/SCADA - iFIX Software
Our existing SCADA systems require licensing of the iF1X software. Without licensing, the
system is a non compliant software platform that is unsupported from the vendor,
PUD must ensure compliance in its water and waterwater processes. Without the SCADA
systems to operate, control, monitor and maintain all critical and dynamic processes
required to provide and sustain compliant water delivery and wastewater recovery, the
integrity of the PUD will become at risk.
2. Benefits of the proiect action
By renewing the licensing for the SCADA systems that operate, control, monitor and
maintain all critical operating systems for all water and wastewater processes, the PUD is
ensuring a continued, compliant and sustainable operation.
As the infrastructure of the SCADA system is built upon ages, hardware has to be replaced
to maintain compliance with existing and proposed Collier County IT policy. This
infrastructure has to also be compliant with ever changing regulations and guidelines
provided by United States Homeland Security standards, as well as other security (FERC)
and operating permit governances (FDEP, AINNA).
As the hardware is replaced, and the regulations and guidance change, the existing
software may become obsolete or unable to be upgraded. The licensing agreement
provides an avenue for the PUD to ensure the sustainment of compliant services to our
customers now and in the future,
As testing and evaluation of existing county processes are performed, specific vulnerabilities
could become apparent that provide exposure to more risk than previously perceived. The
licensing agreement will provide access to specific remediation available from the SCADA
vendor ensuring the perceived risks are appropriately mitigated, allowing PUD to continue to
provide at the specified level of service standards already in place.
5110120l I
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6/28/2011 Item 16.C.5.
The licensing agreement also provides PUD with access to industry standard design and
implementation studies for utilities. GE Intelligent Platforms is a global leader in SCADA
systems, technically in process control. and specifically in water and wastewater plants.
This provides the PUD with direct access to hundreds of SCADA standards, ensuring
existing processes and protocols regarding SCADA implementations, design, networking
and logic functions are implemented in a consistent and appropriate method. This ensures
that not only are our systems reliable, functional and manageable, but also are proven in the
industry and supportable from a technology perspective.
Tangible benefits:
. Provides access to industry standards for SCADA system design, networking and
logic functions
. Mitigation of current and future vulnerabilities through access to vendor upgrades
. Compliance with SCADA and control system security requirements
o US Homeland Security
o FERC
o AWWA
o FDEP
. Access to support structure for emergency and non emergency scenario
o Phone support
o Data downloads and technical documentation
o Email and FAQ support
Intangible benefits:
. Continue sustained compliance for processing of water and wastewater
. Sustained level of service standards
. Scalable solution that provides efficiencies gained through automation of previously
manual processes
. Higher confidence in system due to operations sustainment
. Standardized approach to system architecture
. Economies of scale for operations and management
Cost-avoidance:
. Software patches, upgrades available at reduced cost
. Component trade in program
o Offsets component costs
. Single contract for all licensing of SCADA
o Volume discount
. Total cost of new SCADA systems deployment at all sites
. Reduced contractor costs for maintenance of existing known issues
Given the tangible and intangible benefits, along with the cost avoidances. the PUD will
more than offset the cost of the contract renewal.
3. Risk of not takino the action
There are inherent risks associated with not taking action. If the PUD does not renew the
contract, the systems become unsupported in the eyes of the vendor. The vendor is under
5/1 0/20 11
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6/28/2011 Item 16.C.5,
no obligation to provide service, or respond to emergency response questions. These risks
put in jeopardy, the sustainability and compliancy of the PUD service to the public.
With the increasing reliance on technology and the speed at which technology becomes
obsolete, there are existing vulnerabilities that are already being exploited in other
unsupported systems across the nation. Without being able to leverage the experience from
the vendor, the lessons learned are not available and we are destined to repeat the same
mistakes that mayor may directly impact the operability of the system, and therefore the
compliance and sustain ability of the products delivered to the public.
Describe what can go wrong and how likely that is to occur if the action/project were not
done. Build off of the benefits which would not occur (potential to affect compliance, savings
not realized, etc.)
4. Why is this action the best value solution
The contact renewal is the best option available. The existing SCADA systems are in place.
The contract to support the existing systems and to maintain their compliance is far cheaper
than to completely replace the entire systems across board. At that point, the ongoing cost
for any other system would then incur the same licensing agreement.
Licensing agreements are based upon the number of clients or nodes used to control the
system. The agreement from GE Intelligent Platforms is executed through the distributor for
the state of Florida, GreyMatter Solutions, Inc.
GreyMatter also provides a valuable service in this contract as they provide integration
efforts and support interfacing with GE Intelligent Platforms.
5. Other options to the action
Do not renew - by not renewing the contract with GE Intelligent Platforms, the PUD will be
unsupported in our mission critical systems, unable to migrate to the new applications and
versions that provide responses to known risks in the industry.
Replacement of entire systems - replacing the entire system is a huge capital cost that
would be over $1,000,000 to implement at all the plants. The timeframe to support a
replacement of all systems would be multiyear, during which time; the remaining systems
would require a licensing contract to ensure their compliance during the phased approach.
The PUD could not risk replacing all systems at one time. This approach would jeopardize
the sustainability of supply and capacity to the existing customer base.
6. Staff assessment and recommendation of fair and reasonable
The requested approach of contract renewal of GE Intelligent Platform contract is the most
efficient and cost effectively solution available to provide a compliant SCADA system to
support the existing level of service requirement.
Aaron Cromer, Principal Project Manager, PPMD, Public Utilities Division, 5.9.11
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6/28/2011 Item 16.C.5. -
~ County
~ -
A:IrrinislialMl Services Dvisia1
PlJrdlasing
Waiver Request
Instructions
Completed waiver requests must be submitted to the department's acquisitions agent for requests
above $3.000
Purchases above $3000 require three quotes or formal competition. The department must provide
justification to Purchase to request consideration to waive the competitive purchasing process and
purchase trom a single vendor. Waivers of greater than $50.000 will require approval by the Board of
County Commissioners. . Toquafify for a waiver: .select a waiver category. provide an explanation of the
research conducted and the supportingralionale. ond acquire the approval signature from your director.
Send the woiver request. any research information and contract materials to your acquisition agent in
Purchasing.
Date: 15/13/11
Departmenl: !PPMD
Vendor Name: IGE Intelligent Platforms
Item or Service: liFIX SCADA Service Contract
Anticipated Cost: 1$60.000
o
Emeraencv; Describe the publiC health or safety issues that requires the immediate product or service
(i.e.. The supply of vaccination was completely depleted within hours of delivery to the employee
health center; the current vendor will not receive anofher shipment for 2 weeks),
iFIXSCADA support contract needed to ensure SCADA system operability. GE is vendor.
o
ComDatibllltv I ProDrletarv (One of a Kind or No Substitute Availoblel: Describe the research cDmpleted
fa determine that there is only one product or service capable of meeting the County's existing
conditions and that no other vendor can provide a product, component, or replacement part fhat
may be substituted.
iFIX SCADA support contract needed to ensure SCADA system operability. GE is vendor.
[Z]
Authorized Distributor: Describe the research completed to find similar features and operability, and
A letter from the manufacturer naming the single source authorized distributor(s) in the southwesf Florida
region.
iF IX SCADA support contract needed to ensure SCADA system operability. GE is vendor.
11 is a felony 10 knowingly circumvenl a compelltlve process lor commodities or services by
fraudulently specifying sole source. Florida Slolule 838.22(2),
Requested by:
Date:
~. /h tl
r/'/II
I I
511~\1D\l
Department Director:
Date:
Acquisitions }\gent:
Date:
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6/28/2011 Item 16.C.5, -
.
Intelligent Platforms
3ZS Foxborough Blvd,
Foxborough. MA 020:55
USA
T SOB 698 332,
F 508 698 6%0
wwwgefanuu:om
March 15, 2011
Aaron Cromer
Principal Project Manager
Collier County Public Utilities Division
Planning and Project Management Department
3339 East Tamiami Trail. Suite 303
~~~ples. FL 3"112
Mr. Cromer:
This letter is to inform the Collier County Public Utilities DiVISion that GE Intelligent Platforms. Inc is the
sole manufacturer of Products listed below and the only com pony providing engineering & technicol
support/service under the name GlobolCore. for these products.
. Proficy HMl/sCADA-iFIX Software
. Proficy Historian Software
. Proficy Portal Software
. Proficy Batch Software
. Proficy Change Management Software
. Praficy Production Management (Efficiency, Production. Tracker. Order Execution, Qualityl
. Proficy Workflow
. GlobalCare Software Maintenance Agreements for products listed above
Gray Motter Systems is the only Authorized Representative for the State of Florida for the obove
products.
If you hove any questions or require additional information, please do not hesitate to contact me,
S,incerely.
Lawrence T. Gallagher
GE
Intelligent Platforms
Channel Development Manager
T 50S 69S 71,59
F 508 698 6940
C 781 929 9293
EmOlllowrence,Gallagher@GE.com
325 Foxborough Blvd
Foxborough. MA 02035
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6/28/2011 Item 16.C.5,
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Packet Page -751-
6/28/2011 Item 16.C.5.
GEIP - GC Complete -100111
As modified by the parties
GE Intelligent Platforms, Inc.
Proficy GlobalCare Complete Support Terms and Conditions
1. Services. With respect to the Licensed Application Software (as defined in the underlying License
Agreement, "Application Software"), GE Intelligent Platforms, Inc. will provide the following services
during the applicable period:
1.1. Telephone Support. GE will provide support consultation to Customer regarding use and
operation of the Application Software. Such consultation will include telephone call back or web-
based communication and will be available 8:00 A.M. to 8:00 P.M. E.S.T. or 9:00 A.M. to 5:00
P.M. Mean Time Europe or 9:00 A.M. to 6:00 P.M. China Standard Time, as applicable, Monday
through Friday, excluding holidays at the customer care location. GE will provide the Customer
with direct telephone support consultation and/or web-based communication that shall be
available 24 hours a day, 7 days a week in cases of emergencies. Such emergencies include
when the entire system is down or an existing mission critical product feature is inoperable
resulting in disruption or product outage. GE reserves the right to limit the number of authorized
callers when deemed necessary by GE in its sole discretion. Once such a limit has been
imposed, Customer may register additional individuals for an additional fee. Customer will also
have access to the Online Knowledge Base 24 hours a day, 7 days a week. The Online
Knowledge Base provides access to support reference information including articles, white
papers. error messages, sample code. and developer downloads. A Knowledge Base CD
enables access to the Knowledge Base when not connected to the Internet. The Knowledge
Base CD will be distributed to Customer (a) upon commencement of any initial or renewal
GlobalCare term, and (b) at any other time upon reasonable request from Customer.
1.2. Problem Solvinq. GE technical personnel will be assigned to attempt correction of problems in the
Application Software discovered by Customer and reported to GE in sufficient detail to permit GE
to reproduce such problems. Customers are advised that remote access trouble-shooting tools
may be called for in order to assist efforts to correct problems, and that such efforts may be
impaired if the customer is unable to accommodate the use of such tools. Corrections made by
GE to such problems will be available for download by Customer, or, at GE's option, GE may
provide such problem correction through its next scheduled release of the Application Software.
GE's obligation in such regard shall be to use its reasonable efforts to correct such problems:
however. GE does not warrant that all such reported problems will be corrected. In the event a
reported problem is determined to be of Customer origin. GE may bill Customer at GE's then
current per diem rates for any time expended in an effort to correct such problem.
1.3. Enhancements. GE will provide the Customer with notice of all Service Pack enhancements for
the current version of the Application Software that are released during the term of this
agreement ("Service Packs"), all software improvement modules for the Application Software
version that are released during the term of this agreement ("SIMs"). and all Application Software
version upgrades that are released during the term of this agreement ("Upgrades"), at no
additional charge, with exceptions noted as follows. GE reserves the right to charge for significant
new product functionality introduced in major product releases ("Major Feature"). Major features
are features that are licensed separately and will be additional to the base configuration that the
Customer is already licensed to use. Service Packs. SIMs, and Upgrades are provided for the
quantity of registered Application Software systems on site. Service Packs, SIMs. and Upgrades
apply only to the Application Software and do not include any updates. enhancements, service
packs, or upgrades to the operating system or other software. The Customer may order any of
the Service Packs. SIMs, and/or Upgrades by visiting www.qe-ip.com/support during the term of
this agreement. GE may from time to time make other downloads such as Developer Downloads
and I/O Drivers available to Customer ("Other Downloads").
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6/28/2011 Item 16.C.5.
1.4. Application Software Terms. All Service Packs, SIMs, Upgrades. corrections, updates,
enhancements. documentation, modifications, Other Downloads and other such supporting
materials furnished to Customer hereunder shall be considered part of the Application Software
and subject to all the terms and conditions of the License Agreement, including those provisions
limiting the use of the Application Software to the computer upon which it was initially installed as
authorized by the License Agreement.
2. Warranty. GE warrants to the Customer that services provided hereunder shall be performed in a
manner consistent with standard commercial practices in the industry. If any failure to meet this
warranty appears within ninety (90) days after completion of the specific services in question. GE will
correct any such failure by reperforming any defective portion of the services furnished. If
reperformance is not practicable. GE will furnish. without charge. services in an amount essentially
equal to those which, in GE's sole judgment, would have been required for reperformance. The
warranties and remedies set forth herein are conditioned upon: (i) proper installation, use, and
maintenance of the Application Software and the proper design and configuration of the system into
which the Application Software is installed. and conformance with any applicable recommendations of
GE; and (ii) Customer promptly notifying GE of any defects and making any personnel. software or
computer systems available as necessary. The preceding sets forth the exclusive remedy for all
claims based on failure of, or defect in, services provided hereunder, whether the failure or defect
arises before or during the warranty period. and whether a claim, however instituted. is based on
contract. indemnity. warranty. tort (including negligence), strict liability or otherwise. Upon the
expiration of the warranty period, all such liability shall terminate. THE FOREGOING WARRANTIES
ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN. ORAL,
IMPLIED OR STATUTORY. NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR
PARTICULAR PURPOSE SHALL APPLY. GE DOES NOT WARRANT ANY PRODUCTS OR
SERVICES OF OTHERS WHICH CUSTOMER HAS DESIGNATED.
3. Limit of Liabilitv. GE'S LIABILITY ON ALL CLAIMS OF ANY KIND, WHETHER BASED ON
CONTRACT. INDEMNITY. WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY
OR OTHERWISE, FOR ALL LOSSES OR DAMAGES ARISING OUT OF. CONNECTED WITH. OR
RESULTING FROM ANY SERVICES COVERED BY OR FURNISHED UNDER THESE TERMS AND
CONDITIONS (INCLUDING REMEDIAL WARRANTY EFFORTS). OR FROM THE PERFORMANCE
OR BREACH OF THESE TERMS AND CONDITIONS, SHALL IN NO CASE EXCEED THE ANNUAL
CONTRACT PRICE OF THE SUPPORT SERVICES FURNISHED HEREUNDER. ALL SUCH
LIABILITY SHALL TERMINATE UPON THE EXPIRATION OF THE WARRANTY PERIOD
SPECIFIED IN SECTION 2 ABOVE.
4. Exclusion of Consequential Damaqes. IN NO EVENT, WHETHER BASED ON CONTRACT.
INDEMNITY, WARRANTY. TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
OTHERWISE. SHALL GE, ITS EMPLOYEES AND SUPPLIERS BE LIABLE FOR SPECIAL,
INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED
TO, LOSS OF PROFITS OR REVENUE. LOSS OF USE OF ANY PROPERTY. COST OF CAPITAL.
COST OF PURCHASED POWER. COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR
SERVICES, DOWNTIME COSTS, OR CLAIMS OF CUSTOMERS OF THE CUSTOMER FOR SUCH
DAMAGES.
5. Gratuitous Advice. If GE furnishes the Customer with advice or assistance concerning any products
or systems which is not required pursuant to these terms and conditions, the furnishing of such
advice or assistance will not subject GE to any liability, whether in contract. indemnity, warranty. tort
(including negligence), strict liability or otherwise.
6. Restrictions on Assiqnment. Customer may not assign or transfer this agreement without GE's prior
written agreement.
7. Conditions of Service. The Application Software must be unmodified and in normal operating
condition, and maintained at the latest release or revision level. and must contain the minimum
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6/28/2011 Item 16.C.5.
equipment configuration at the revision level specified by GE. Customer must consult with GE before
performing any upgrades on any third party software required to run the Application Software.
8. Term and Termination
8.1. GlobalCare Support dates of service will be as stated on the Customer's GlobalCare Support
program certificate. Customer shall have the right to renew GiobalCare Support on a yearly basis
as provided herein. subject to continuation of the program for the product(s) and payment of the
applicable GE yearly service fee then in effect.
8.2. GE shall notify Customer that the applicabie service period is ending, no iess than thirty (30) days
prior to expiration. Timely payment of the applicable yearly service fee, as provided in Section 9
below, shall extend Support Services. If payment is no1 received as set forth herein, Support
Services will be terminated, and Customer will be placed on inactive status. The Customer may
reactivate Support Services thereafter by paying a re-instatement fee.
8.3. GE may alter, discontinue, or refuse to permit the renewal of, any GlobalCare Support Program
with respect to any or all products at any time. Customers will be notified of any alterations or
planned discontinuations in a program at the time of the commencement of any initial or renewal
term of such program. In the event of a discontinuation of a program, GE will continue to provide
program support to existing Customers, subject to payment of the applicable GE yearly service
fee then in effect, until the expiration of the Customer's initial or renewal term.
8.4. Support Services hereunder shall automatically terminate in the event the License Agreement is
terminated.
9. Charqes and Pavment Terms
9.1. GE may adjust its applicable yearly service fee for GlobalCare Support either up or down for each
renewal year following the initial period of its provision of GlobalCare Support, provided that GE
notifies Customer of the amount of such adjustment at ieast thirty (30) days in advance of each
such renewal.
9.2. Charges for each renewal year of Support Services are due upon renewal and shall be paid in
accordance with Section 218.70. Fla. Stats.. otherwise known as the "Local Government Prompt
Payment Act".
9.3. The Not to Exceed annual cost for Licensing and Service is Forty Nine Thousand Three Hundred
Seventy Two Dollars ($49.372.00).
10. Use of Technical Information. With respect to any technical information that the Customer may
provide to GE in connection with the GlobalCare Support, GE may use such information for the
limited purposes of writing and posting technical notes on the support services website and
Knowledge Base CD and compiling aggregate data, for internal use only, on the frequency and type
of support services requested. GE will not utiiize such technical information in any form that
personally identifies the Customer.
11. General Provisions.
11.1. These Terms and Conditions, along with the End User License Agreement attached as Exhibit
A, contain the complete agreement between the parties, and no modification. amendment,
rescission. waiver or other change will be binding on GE unless agreed to in writing by GE's
authorized representative. Any oral or written representation, warranty, course of dealing or
trade usage not contained or referenced herein will not be binding on GE. The invalidity, in
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6/28/2011 Item 16.C.5.
whole or part, of any sections or subsections hereof shall not affect the remainder of such
section or subsection or any other section or subsection hereof.
11.2. This Agreement shall be governed by the laws of the State of Florida without regard to its
confiict of law provisions. The provisions of the United Nations Convention on the International
Sale of Goods shall not apply to this Agreement.
11.3. Customer shall not transmit to GE any information. suggestions. or ideas claimed by Customer
to be confidential except pursuant to a writing, signed by an authorized representative of GE.
which identifies such information and addresses its confidentiality.
Packet Page -755-
6/28/2011 Item 16.C.5,
GEIP - EULA - 091211
GE Intelligent Platforms, Inc. (uGE")
End User License Agreement
YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE OPENING
THIS PACKAGE OR SIGNIFYING YOUR ACCEPTANCE BY CLICKING THE APPROPRIATE DIALOG
BOX. OPENING THIS PACKAGE OR CLICKING THE APPROPRIATE DIALOG BOX OR USING ANY
PART OF THE SOFTWARE SIGNIFIES YOUR ACCEPTANCE AS "CUSTOMER" OF THESE TERMS
AND CONDITIONS. IF YOU DO NOT AGREE WITH THEM, YOU SHOULD PROMPTLY RETURN THE
PACKAGE UNOPENED AND UNUSED ALONG WITH ANY OTHER ITEM THAT WAS INCLUDED IN
THE SAME CATALOG NUMBER FOR FULL CREDIT.
1. DEFINITIONS
1.1 "Application Software" shall mean those portions of the Licensed Software. in object code form
only, created by GE.
1.2 "Designated Computer" shall mean the one (1) computer upon which Customer shall run the
Licensed Software.
1.3 "Third Party Software" shall mean software. including but not limited to operating systems. owned
or licensed by a third party that is supplied to Customer by GE.
1.4 "Licensed Software" shall mean the Application Software plus any other software (including Third
Party Software), in object code form only, supplied by GE pursuant to this Agreement. If no operating
system software is included in the software provided under this Agreement. Customer must make
provision for any required operating system software licenses.
2. LICENSE
2.1 Except as provided in Section 2.2 below, Customer is granted only a personal, non-1ransferable,
nonexclusive license to install and use one copy of the Licensed Software only on the Designated
Computer. Customer may make one copy of the Licensed Software in machine readable form for backup
purposes in support of Customer's use of the Licensed Software on the Designated Computer. No other
copies shall be made unless authorized in writing by GE. Customer may not modify, reverse compile or
disassemble the software. The Licensed Software. comprising proprietary trade secret information of GE
and/or its licensors. shall be held in confidence by Customer and protected from copying or disclosure to
third parties. No title to the intellectual property is transferred. Customer must reproduce and always
include all applicable copyright notices and proprietary markings on any copy. Customer hereby
acknowledges and agrees that any Licensed Software that is embedded within GE hardware, shall be
used, redistributed and/or resold only to the extent permissible under this Agreement and only embedded
within the GE hardware with which it was provided.
2.2 If Customer is an authorized GE distributor or an Original Equipment Manufacturer or a system
provider who incorporates the Licensed Software into its equipment or system for sale to an end user, or
if Customer uses the Licensed Software to create redistributables, Customer may only transfer the
Licensed Software to an end user provided that the end user agrees to be bound by the provisions of this
Agreement. Customer shall use its best efforts to enforce its agreement with customers made in
accordance with this section, and shall promptly report any violation or suspected vioiation to GE.
2.3 All rights and benefits afforded to GE under this Agreement shall apply equally to the owner of the
Third Party Software and its licensors (collectively, the "Third Parties") with respect to the Third Party
Software. The Third Parties are intended third party beneficiaries of this Agreement. The provisions of
this Agreement relating to the Licensed Software. as the same incorporate Third Party Software, are
made expressly for the benefit of, and are enforceable by, the Third Parties. The Third Parties retain
title to the Third Party Software. Unless the Third Parties extend a pass-through warranty covering
the Third Party Software to Customer, all Third Party Software is provided "AS IS" without
warranty of any kind, and the Third Parties disclaim all warranties, either express or implied,
including but not limited to the implied warranties of merchantability, title, non-infringement or
fitness for a particular purpose with regard to the Third Party Software, The Third Parties shall
not have any liability for special, indirect, punitive, incidental or consequential damages,
2.4 EXCEPT AS PROVIDED IN SECTION 2.2 ABOVE, iF CUSTOMER TRANSFERS POSSESSION
OF ANY COPY OF THE LICENSED SOFTWARE TO ANOTHER PARTY WITHOUT WRITTEN
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6/28/2011 Item 16.C.5.
CONSENT OF GE. THIS LICENSE IS AUTOMATICAllY TERMINATED. Any attempt otherwise to
sublicense, assign or transfer any of the right, duties or obligations hereunder is void.
2.5 If the licensed Software or associated documentation is provided to any U.S. Government entity,
unit. or agency, the restrictions set forth at section 52.227-19(c) ("Commercial computer software -
restricted rights") of the Federal Acquisition Regulations (FARs) shall apply. If the Licensed Software or
associated documentation is provided to the U.S. Government. Department of Defense (DOD), or any
entity, unit, or agency thereof, the restrictions set forth at section 252.227-7015 ("Technical Data -
Commercial Items") and section 252.227-7013(c)(1) ("Technical Data - Restricted Rights") of the DOD
FAR Supplement (DFARS) shall also apply.
3. WARRANTY
3.1 GE warrants that the Application Software will be in substantial conformance with the manual
pertaining thereto as of the date of shipment by GE. If, within ninety (90) days of date of shipment it is
shown that the Application Software does not meet this warranty. GE will. at its option, either correct the
defect or error in the Application Software. free of charge. or make available to Customer satisfactory
substitute software, or, if none of the foregoing is reasonably available. return to Customer all payments
made as license fees and terminate the license with respect to the Application Software affected. GE
does not warrant that operation of the Application Software will be uninterrupted or error free or that it will
meet Customer's needs. All other portions of the Licensed Software are provided "as is" without warranty
of any kind.
3.2 GE warrants that the media on which the Application Software is delivered will be free
from defects in material or workmanship under normal use and service for a period of ninety (90)
days from the date of delivery. If any defects are discovered in the media and reported by
Customer within ninety (90) days after delivery, GE shall. at no cost to Customer, upon return of
media to GE. replace the media and deliver to Customer a new and complete copy of the
Application Software.
3.3 Any modification to the licensed Software by the Customer without the express written
consent of GE shall void the warranty.
3.4 WITH RESPECT TO THE SOFTWARE WHICH IS THE SUBJECT OF THIS AGREEMENT, THE
FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES
WITH RESPECT TO THE LICENSED SOFTWARE WHETHER WRITTEN, ORAL, IMPLIED OR
STATUTORY, NO IMPLIED OR STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE SHALL APPLY. NO WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE SHALL APPLY.
4. LIMITATION OF LIABILITY
4.1 IN NO EVENT, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT
(INCLUDING NEGLIGENCE). STRICT LIABILITY, OR OTHERWISE SHAll GE OR ITS SUPPLIERS BE
LIABLE FOR ANY INDIRECT. SPECIAL, INCIDENTAL. CONSEQUENTIAL, PUNITIVE. OR
EXEMPLARY DAMAGES. INCLUDING. BUT NOT LIMITED TO. lOSS OF PROFIT OR REVENUE,
lOSS OF USE OF THE LICENSED SOFTWARE OR ANY PART THEREOF OR ANY ASSOCIATED
EQUIPMENT, DAMAGE TO ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE
PRODUCTS, FACILITIES, SERVICES OR REPLACEMENT POWER. DOWN TIME COSTS, OR
CLAIMS OF CUSTOMER'S CUSTOMERS AND TRANSFEREES FOR SUCH DAMAGES EVEN IF GE
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.2 EXCEPT AS PROVIDED IN SECTION 5. INDEMNITY. IN NO EVENT, WHETHER BASED ON
CONTRACT. INDEMNITY, WARRANTY. TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
OTHERWISE, SHAll GE'S LIABILITY TO CUSTOMER FOR ANY lOSS OR DAMAGE ARISING OUT
OF, OR RESULTING FROM THIS AGREEMENT. OR FROM ITS PERFORMANCE OR BREACH. OR
FROM THE LICENSED SOFTWARE OR ANY PART THEREOF, OR FROM ANY SERVICE
FURNISHED HEREUNDER. EXCEED THE FEES PAID BY CUSTOMER FOR THE LICENSED
SOFTWARE. All SUCH LIABILITY SHAll TERMINATE UPON THE TERMINATION OF THE
WARRANTY PERIOD AS SET FORTH IN SECTION 3.
4.3 If GE furnishes Customer with advice or other assistance which concerns licensed Software or
any portion thereof supplied hereunder or any system or equipment on which any such software may be
installed and which is not required pursuant to this Agreement. the furnishing of such advice or assistance
Packet Page -7S7-
6/28/2011 Item 16.C.5,
will not subject GE to any liability, whether in contract. indemnity, warranty, tort, (including negligence),
strict liability, or otherwise.
4.4 The products to be licensed or sold hereunder are not intended for use in any nuclear, chemical
or weapons production facility or activity, or other activity where failure of the products could lead directly
to death, personal injury or severe physical or environmental damage. If so used, GE disclaims all liability
for any damages arising as a result of the hazardous nature of the business in question, inciuding but not
limited to nuclear, chemical or environmental damage, injury or contamination, and Customer shall
indemnify, hold harmless and defend GE, its officers, directors, employees and agents against all such
liability, whether based on contract, indemnity, warranty, tort (including negligence), strict liability. or
otherwise, regardless of whether GE had knowledge of the possibili1y of such damages. The foregoing
indemnification shall not constitute a waiver of sovereign immunity or extend the parties liability beyond
the limits established in Section 768.28 of the Florida Statutes.
5. INDEMNITY
5.1 GE warrants that the Application Software shall be delivered free of any rightful claim for
infringement of any United States patent, copyright, trademark or trade secret. If notified promptly in
writing and given authority, information and assistance, GE shall defend, or may settle, at its expense,
any suit or proceeding against Customer so far as based on a claimed infringement which would result in
a breach of this warranty and GE shall pay all damages and costs awarded therein against Customer due
to such breach. In case the Application Software is in such suit held to constitute such an infringement
and its use is enjoined, GE shall, at its expense and option, either procure for Customer the right to
continued use. or replace same with a non-infringing product or part, or modify the Application Software
so that it becomes non-infringing. or remove the software and refund the license charge pertaining thereto
(less reasonable depreciation for any period of use) and any transportation costs separately paid by
Customer. The foregoing states 1he entire liability of GE for patent, copyright. trademark and trade secret
infringement by the Licensed Software or any part thereof.
5.2 The indemnity under the preceding paragraph shall not apply to any use of Application Software
in conjunction with any other product in a combination not furnished by GE as a part of this transaction.
As to any such use in such combination, or any improper or unauthorized use, installation. or operation of
the Application Software. GE assumes no liability whatsoever for patent. copyright, trademark or trade
secret infringement and Customer will hold GE harmless against any infringement claims arising
therefrom (including, but not limited to reasonable attorney's fees). The foregoing indemnification shall not
constitute a waiver of sovereign immunity or extend the parties liabiiity beyond the limits established in
Section 768.28 of the Florida Statutes.
6. TERM AND TERMINATION
6.1 Customer may terminate the license granted hereunder at any time by destroying the Licensed
Software together with all copies thereof and notifying GE in writing that all use of the Licensed Software
has ceased and that the Licensed Software has been destroyed.
6.2 GE. upon thirty (30) days notice, may terminate this Agreement and/or any license hereunder if
Customer fails to perform any obligation or undertaking to be performed by it under this Agreement or if
Customer attempts to assign this Agreement without the prior written consent of GE. Within twenty (20)
days after any such termination of this Agreement, Customer shall certify in writing to GE that all use of
the Licensed Software or the affected portion thereof has ceased, and that the Licensed Software or
portion thereof has been returned or destroyed, in accordance with GE's instructions.
6.3 Sections 4, 6 and 7 of this Agreement shall survive any expiration or termination and remain in
effect. Termination of this Agreement or any license hereunder shall not relieve Customer of its obligation
to pay any and all outstanding charges hereunder nor entitle Customer to any refund of such charges
previously paid.
7. EXPORT
If Customer intends to export (or reexport), directly or indirectly, the software products or technical
data relating thereto supplied hereunder or any portion thereof, it is Customer's responsibility to assure
compliance with U.S. and any other applicable governmental export control laws and. if appropriate, to
secure any required export licenses or approvals in Customer's own name. Customer is also responsible
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6/28/2011 Item 16.C.5.
for the accuracy and completeness of any information or certification Customer provides for purposes of
export control compliance.
8. PAYMENT TERMS
All quoted charges arising pursuant to this Agreement are due upon delivery of the licensed Software
or any hardware delivered as part of the same Customer order (whichever is earlier) to which such
charges pertain and shall be paid in accordance with Section 218.70, Fla. Stats., otherwise known as the
"Local Government Prompt Payment Act.". Prices quoted are exclusive of all sales. use, and excise taxes
(and any other assessments in the nature of taxes however designated). Customer shall pay all import
duties and registration fees and all sales, use and excise taxes (and any other assessments in the nature
of taxes however designated) arising from the licensing of the licensed Software hereunder, exclusive of
taxes based on GE's net income. Collier County, Florida as a political subdivision of the State of Florida.
is exempt from payment of Florida sales tax to its vendors under Chapter 212. Florida Statutes. Certificate
of Exemption #21-07-019995-53c.
9. FORCE MAJEURE
GE shall not be responsible for failures to fulfill its obligations under this Agreement due to causes
beyond its control.
10. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Florida, without regard to its conflict of
law provisions. The provisions of the United Nations Convention on the International Sale of Goods shall
not apply to this Agreement.
11. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement with respect to the subject matter hereof and
supersedes all proposais. oral or written, all previous negotiations and all other communications between
the parties with respect to the subject matter hereof. These terms and conditions shall prevail,
notwithstanding any different, conflicting. or additional terms and conditions that may appear on any
purchase order or other instrument submitted by Customer. Deviation from these terms and conditions
are not valid unless confirmed in writing by an authorized representative of GE. The invalidity of any
portion of this Agreement shall not affect the remainder of this Agreement.
CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ THIS AGREEMENT, UNDERSTANDS
IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. CUSTOMER FURTHER
AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT
BETWEEN CUSTOMER AND GE AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT,
ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT. FURTHER. NO CHANGE OR AMENDMENT TO THIS
AGREEMENT SHALL BE EFFECTIVE UNLESS AGREED TO BY WRITTEN INSTRUMENT SIGNED BY
A DULY AUTHORIZED REPRESENTATIVE OF GE AND CUSTOMER
Should you have any questions concerning this Agreement. you may contact GE by contacting: Legal
Department. GE Intelligent Platforms, 2500 AustJl1 Drive, Charlottesville. VA 22911 or 1-800-433-2682,
COLLIER COUNTY BOARD OF COUNTY
Service
COMMISSIONERS
Erik Udstuen, VP Software and
Date
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Packet Page -759-
6/28/2011 Item 16.C.5.
Approved for Legal Sufficiency:
Packet Page -760-
6/28/2011 Item 16.C,5.
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GE Intelligent Platforms, Inc.
Proficy GlobalCare Complete Support Terms and Conditions
1. Services. With respect to the Licensed Application Software (as defined in the underlying License
Agreement. "Application Software"), GE Intelligent Platforms. Inc. will provide the following services
during the applicable period:
1.1. Teleohone Suooort. GE will provide support consultation to Customer regarding use and
operation of the Application Software. Such consultation will include telephone call back or web-
based communication and will be available 8:00 A.M. to 8:00 P.M. E.S.T. or 9:00 A.M. to 5:00
P.M. Mean Time Europe or 9:00 A.M. to 6:00 P.M. China Standard Time. as applicable, Monday
through Friday. excluding holidays at the customer care location. GE will provide the Customer
with direct telephone support consultation and/or web-based communication that shall be
available 24 hours a day, 7 days a week in cases of emergencies. Such emergencies include
when the entire system is down or an existing mission critical product feature is inoperable
resulting in disruption or product outage. GE reserves the right to limit the number of authorized
callers when deemed necessary by GE in Its sole discretion. Once such a limit has been
imposed, Customer may register additional individuals for an additional fee. Customer will also
have access to the Online Knowledge Base 24 hours a day. 7 days a week. The Online
Knowledge Base provides access to support reference information including articles. white
papers. error messages. sample code, and developer downloads. A Knowledge Base CD
enables access to the Knowledge Base when not connected to the Internet. The Knowledge
Base CD will be distributed to Customer (a) upon commencement of any initial or renewal
GlobalCare term. and (b) at any other time upon reasonable request from Customer.
1.2. Problem Solvino. GE technical personnel will be assigned to attempt correction of problems in the
Application Software discovered by Customer and reported to GE in sufficient detail to permit GE
to reproduce such problems. Customers are advised that remote access trouble-shooting tools
may be called for in order to assist efforts to correct problems. and that such efforts may be
impaired if the customer is unable to accommodate the use of such tools. Corrections made by
GE to such problems will be available for download by Customer, or. at GE's option, GE may
provide such problem correction through its next scheduled release of the Application Software.
GE's obligation in such regard shall be to use its reasonable efforts to correct such problems;
however, GE does not warrant that all such reported problems will be corrected. In the event a
reported problem is determined to be of Customer origin. GE may bill Customer at GE's then
current per diem rates for any time expended in an effort to correct such problem.
1.3. Enhancements. GE will provide the Customer with notice of all Service Pack enhancements for
the current version of the Application Software that are released during the term of this
agreement ("Service Packs"). all software improvement modules for the Application Software
version that are released during the term of this agreement ("SIMs"). and all Application Software
version upgrades that are released during the term of this agreement ("Upgrades"), at no
additional charge, with exceptions noted as follows. GE reserves the right to charge for significant
new product functionality introduced in major product releases ("Major Feature"). Major features
are features that are licensed separately and will be additional to the base configuration that the
Customer is already licensed to use. Service Packs. SIMs, and Upgrades are provided for the
quantity of registered Application Software systems on site. Service Packs. SIMs. and Upgrades
apply only to the Application Software and do not include any updates. enhancements, service
packs, or upgrades to the operating system or other software. The Customer may order any of
the Service Packs, SIMs, and/or Upgrades by visiting www.qe-io.com/suooort during the term of
this agreement. GE may from time to time make other downloads such as Developer Downloads
and 1/0 Drivers available to Customer ("Other Downloads").
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1.4. Application Software Terms. All Service Packs. SIMs. Upgrades. corrections, updates,
enhancements, documentation. modifications, Other Downloads and other such supporting
materials furnished to Customer hereunder shall be considered part of the Application Software
and subject to all the terms and conditions of the License Agreement, including those provisions
limiting the use of the Application Software to the computer upon which it was initially installed as
authorized by the License Agreement.
2. Warrantv. GE warrants to the Customer that services provided hereunder shall be performed in a
manner consistent with standard commercial practices in the industry. If any failure to meet this
warranty appears within ninety (90) days after completion of the specific services in question, GE will
correct any such failure by reperforming any defective portion of the services furnished. If
reperformance is not practicable. GE will furnish, without charge, services in an amount essentially
equal to those which. in GE's sole judgment, would have been required for reperformance. The
warranties and remedies set forth herein are conditioned upon: (i) proper installation. use, and
maintenance of the Application Software and the proper design and configuration of the system into
which the Application Software is installed, and conformance with any applicable recommendations of
GE; and (ii) Customer promptly notifying GE of any defects and making any personnel. software or
com puler systems available as necessary. The preceding sets forth the exclusive remedy for all
claims based on failure of, or defect in. services provided hereunder, whether the failure or defect
arises before or during the warranty period, and whether a claim. however instituted, is based on
contract. indemnity. warranty, tort (including negligence). strict liability or otherwise. Upon the
expiration of the warranty period. all such liability shall terminate. THE FOREGOING WARRANTIES
ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL.
IMPLIED OR STATUTORY. NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR
PARTICULAR PURPOSE SHALL APPLY. GE DOES NOT WARRANT ANY PRODUCTS OR
SERVICES OF OTHERS WHICH CUSTOMER HAS DESIGNATED.
3. Limit of Liabilitv. GE'S LIABILITY ON ALL CLAIMS OF ANY KIND. WHETHER BASED ON
CONTRACT. INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY
OR OTHERWISE. FOR ALL LOSSES OR DAMAGES ARISING OUT OF. CONNECTED WITH, OR
RESULTING FROM ANY SERVICES COVERED BY OR FURNISHED UNDER THESE TERMS AND
CONDITIONS (INCLUDING REMEDIAL WARRANTY EFFORTS). OR FROM THE PERFORMANCE
OR BREACH OF THESE TERMS AND CONDITIONS, SHALL IN NO CASE EXCEED THE ANNUAL
CONTRACT PRICE OF THE SUPPORT SERVICES FURNISHED HEREUNDER. ALL SUCH
LIABILITY SHALL TERMINATE UPON THE EXPIRATION OF THE WARRANTY PERIOD
SPECIFIED IN SECTION 2 ABOVE.
4. Exclusion of Conseauential Damaaes. IN NO EVENT. WHETHER BASED ON CONTRACT,
INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
OTHERWISE, SHALL GE. ITS EMPLOYEES AND SUPPLIERS BE LIABLE FOR SPECIAL,
INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED
TO, LOSS OF PROFITS OR REVENUE. LOSS OF USE OF ANY PROPERTY. COST OF CAPITAL,
COST OF PURCHASED POWER, COST OF SUBSTITUTE EQUIPMENT. FACILITIES OR
SERVICES, DOWNTIME COSTS. OR CLAIMS OF CUSTOMERS OF THE CUSTOMER FOR SUCH
DAMAGES.
5. Gratuitous Advice. If GE furnishes the Customer with advice or assistance concerning any products
or systems which is nol required pursuant to these terms and conditions, the furnishing of such
advice or assistance will not subject GE to any liability, whether in contract, indemnity. warranty. tort
(including negligence), strict liability or otherwise.
6. Restrictions on Assianment. Customer may not assign or transfer this agreement without GE's prior
written agreement.
7. Conditions of Service. The Application Software must be unmodified and in normal operating
condition, and maintained at the latest release or revision level, and must contain the minimum
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equipment configuration at the revision level specified by GE. Customer must consult with GE before
performing any upgrades on any third party software required to run the Application Software.
8. Term and Termination
8.1. GlobalCare Support dates of service will be as stated on the Customer's GlobalCare Support
program certificate. Customer shall have the right to renew GlobalCare Support on a yearly basis
as provided herein, subject to continuation of the program for the product(s) and payment of the
applicable GE yearly service fee then in effect.
8.2. GE shall notify Customer that the applicable service period is ending. no less than thirty (30) days
prior to expiration. Timely payment of the applicable yearly service fee. as provided in Section 9
below, shall extend Support Services. If payment is not received as set forth herein, Support
Services will be terminated, and Customer will be placed on inactive status. The Customer may
reactivate Support Services thereafter by paying a re-instatement fee.
8.3. GE may alter, discontinue, or refuse to permit the renewal of, any GlobalCare Support Program
with respect to any or all products at any time. Customers will be notified of any alterations or
planned discontinuations in a program at the time of the commencement of any initial or renewal
term of such program. In the event of a discontinuation of a program, GE will continue to provide
program support to existing Customers, subject to payment of the applicable GE yearly service
fee then in effect, until the expiration of the Customer's initial or renewal term.
8.4. Support Services hereunder shall automatically terminate in the event the License Agreement is
terminated.
9. Charqes and Pavment Terms
9.1. GE may adjust its applicable yearly service fee for GlobalCare Support either up or down for each
renewal year following the initial period of its provision of GlobalCare Support, provided that GE
notifies Customer of the amount of such adjustment at least thirty (30) days in advance of each
such renewal.
9.2. Charges for each renewal year of Support Services are due upon renewal and shall be paid in
accordance with Section 218.70, Fla. Stats., otherwise known as the "Local Government Prompt
Payment Act".
9.3. The Not to Exceed annual cost for Licensing and Service is Forty Nine Thousand Three Hundred
Seventy Two Dollars ($49,372.00).
10. Use of Technical Information. With respect to any technical information that the Customer may
provide to GE in connection with the GlobalCare Support, GE may use such information for the
limited purposes of writing and posting technical notes on the support services website and
Knowledge Base CD and compiling aggregate data, for internal use only, on the frequency and type
of support services requested. GE will not utilize such technical information in any form that
personally identifies the Customer.
11. General Provisions.
11.1. These Terms and Conditions, along with the End User License Agreement attached as Exhibit
A, contain the complete agreement between 1he parties, and no modification, amendment,
rescission. waiver or other change will be binding on GE unless agreed to in writing by GE's
authorized representative. Any oral or written representation, warranty, course of dealing or
trade usage not contained or referenced herein will not be binding on GE. The invalidity. in
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whole or part. of any sections or subsections hereof shall not affect the remainder of such
section or subsection or any other section or subsection hereof.
11.2. This Agreement shall be governed by the laws of the State of Florida without regard to its
conflict of law provisions. The provisions of the United Nations Convention on the International
Sale of Goods shall not apply to this Agreement.
11.3. Customer shall not transmit to GE any information. suggestions, or ideas claimed by Customer
to be confidential except pursuant to a writing. signed by an authorized representative of GE.
which identifies such information and addresses its confidentiality.
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GEIP - EULA - 091211
GE Intelligent Platforms, Inc, ("GE")
End User License Agreement
YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE OPENING
THIS PACKAGE OR SIGNIFYING YOUR ACCEPTANCE BY CLICKING THE APPROPRIATE DIALOG
BOX. OPENING THIS PACKAGE OR CLICKING THE APPROPRIATE DIALOG BOX OR USING ANY
PART OF THE SOFTWARE SIGNIFIES YOUR ACCEPTANCE AS "CUSTOMER" OF THESE TERMS
AND CONDITIONS. IF YOU DO NOT AGREE WITH THEM, YOU SHOULD PROMPTLY RETURN THE
PACKAGE UNOPENED AND UNUSED ALONG WITH ANY OTHER ITEM THAT WAS INCLUDED IN
THE SAME CATALOG NUMBER FOR FULL CREDIT.
1. DEFINITIONS
1.1 "Application Software" shall mean those portions of the Licensed Software, in object code form
only. created by GE.
1.2 "Designated Computer" shall mean the one (1) computer upon which Customer shall run the
Licensed Software.
1.3 "Third Party Software" shall mean software, including but not limited to operating systems. owned
or licensed by a third party that is supplied to Customer by GE.
1.4 "Licensed Software" shall mean the Application Software plus any other software (including Third
Party Software), in object code form only, supplied by GE pursuant to this Agreement. If no operating
system software is included in the software provided under this Agreement. Customer must make
provision for any required operating system software licenses.
2. LICENSE
2.1 Except as provided in Section 2.2 below. Customer is granted only a personal, non-transferable,
nonexclusive license to install and use one copy of the Licensed Software only on the Designated
Computer. Customer may make one copy of the Licensed Software in machine readable form for backup
purposes in support of Customer's use of the Licensed Software on the Designated Computer. No other
copies shall be made unless authorized in writing by GE. Customer may not modify, reverse compile or
disassemble the software. The Licensed Software, comprising proprietary trade secret information of GE
and/or its licensors, shall be held in confidence by Customer and protected from copying or disclosure to
third parties. No title to the intellectual property is transferred. Customer must reproduce and always
include all applicable copyright notices and proprietary markings on any copy. Customer hereby
acknowledges and agrees that any Licensed Software that is embedded within GE hardware, shall be
used, redistribu1ed and/or resold only to the extent permissible under this Agreement and only embedded
within the GE hardware with which it was provided.
2.2 If Customer is an authorized GE distributor or an Original Equipment Manufacturer or a system
provider who incorporates the Licensed Software into its equipment or system for sale to an end user, or
if Customer uses the Licensed Software to create redistributables, Customer may only transfer the
Licensed Software to an end user provided that the end user agrees to be bound by the provisions of this
Agreement. Customer shall use its best efforts to enforce its agreement with customers made in
accordance with this section, and shall promptly report any violation or suspected violation to GE.
2.3 All rights and benefits afforded to GE under this Agreement shall apply equally to the owner of the
Third Party Software and its licensors (collectively, the "Third Parties") with respect to the Third Party
Software. The Third Parties are intended third party beneficiaries of this Agreement. The provisions of
this Agreemenl relating to the Licensed Software. as the same incorporate Third Party Software. are
made expressly for the benefil of. and are enforceable by, the Third Parties. The Third Parties retain
title to the Third Party Software. Unless the Third Parties extend a pass-through warranty covering
the Third Party Software to Customer, all Third Party Software is provided "AS IS" without
warranty of any kind, and the Third Parties disclaim all warranties, either express or implied,
including but not limited to the implied warranties of merchantability, tille, n.on-infringement or
fitness for a particular purpose with regard to the Third Party Software, The Third Parties shall
not have any liability for special, indirect, punitive, incidental or consequential damages.
2.4 EXCEPT AS PROVIDED IN SECTION 2.2 ABOVE. IF CUSTOMER TRANSFERS POSSESSION
OF ANY COPY OF THE LICENSED SOFTWARE TO ANOTHER PARTY WITHOUT WRITTEN
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CONSENT OF GE, THIS LICENSE IS AUTOMATICALLY TERMINATED. Any attempt otherwise to
sublicense. assign or transfer any of the right. duties or obligations hereunder is void.
2.5 If the Licensed Software or associated documentation is provided to any U.S. Government entity,
unit, or agency, the restrictions set forth at section 52.227-19(c) ("Commercial computer software -
restricted rights") of the Federal Acquisition Regulations (FARs) shall apply. If the Licensed Software or
associated documentation is provided to the U.S. Government, Department of Defense (DOD), or any
entity, unit, or agency thereof, the restrictions set forth at section 252.227-7015 ("Technical Data -
Commercial Items") and section 252.227-7013(c)(1) ("Technical Data - Restricted Rights") of the DOD
FAR Supplement (DFARS) shall also apply.
3. WARRANTY
3.1 GE warrants that the Application Software will be in substantial conformance with the manual
pertaining thereto as of the date of shipment by GE. If. within ninety (90) days of date of shipment it is
shown that the Application Software does not meet this warranty. GE will. at its option, either correct the
defect or error in the Application Software, free of charge. or make available to Customer satisfactory
substitute software, or, if none of the foregoing is reasonably available, return to Customer all payments
made as license fees and terminate the license with respect to the Application Software affected. GE
does not warrant that operation of the Application Software will be uninterrupted or error free or that it will
meet Customer's needs. All other portions of the Licensed Software are provided "as is" without warranty
of any kind.
3.2 GE warrants that the media on which the Application Software is delivered will be free
from defects in material or workmanship under normal use and service for a period of ninety (90)
days from the date of delivery. If any defects are discovered in the media and reported by
Customer within ninety (90) days after delivery. GE shall, at no cost to Customer. upon return of
media to GE. replace the media and deliver to Customer a new and complete copy of the
Application Software.
3.3 Any modification to the Licensed Software by the Customer without the express written
consent of GE shall void the warranty.
3.4 WITH RESPECT TO THE SOFTWARE WHICH IS THE SUBJECT OF THIS AGREEMENT, THE
FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES
WITH RESPECT TO THE LICENSED SOFTWARE WHETHER WRITTEN, ORAL, IMPLIED OR
STATUTORY, NO IMPLIED OR STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE SHALL APPLY. NO WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE SHALL APPLY.
4. LIMITATION OF LIABILITY
4.1 IN NO EVENT. WHETHER BASED ON CONTRACT, INDEMNITY. WARRANTY, TORT
(INCLUDING NEGLIGENCE). STRICT LIABILITY, OR OTHERWISE SHALL GE OR ITS SUPPLIERS BE
LIABLE FOR ANY INDIRECT. SPECIAL. INCIDENTAL. CONSEQUENTIAL. PUNITIVE, OR
EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUE,
lOSS OF USE OF THE LICENSED SOFTWARE OR ANY PART THEREOF OR ANY ASSOCIATED
EQUIPMENT, DAMAGE TO ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE
PRODUCTS. FACILITIES. SERVICES OR REPLACEMENT POWER, DOWN TIME COSTS. OR
CLAIMS OF CUSTOMER'S CUSTOMERS AND TRANSFEREES FOR SUCH DAMAGES EVEN IF GE
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
42 EXCEPT AS PROVIDED IN SECTION 5, INDEMNITY, IN NO EVENT, WHETHER BASED ON
CONTRACT, INDEMNITY. WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
OTHERWISE, SHAll GE'S LIABILITY TO CUSTOMER FOR ANY lOSS OR DAMAGE ARISING OUT
OF, OR RESULTING FROM THIS AGREEMENT, OR FROM ITS PERFORMANCE OR BREACH. OR
FROM THE LICENSED SOFTWARE OR ANY PART THEREOF. OR FROM ANY SERVICE
FURNISHED HEREUNDER. EXCEED THE FEES PAID BY CUSTOMER FOR THE LICENSED
SOFTWARE. All SUCH LIABILITY SHAll TERMINATE UPON THE TERMINATION OF THE
WARRANTY PERIOD AS SET FORTH IN SECTION 3.
4.3 If GE furnishes Customer With adVice or other assistance which concerns Licensed Software or
any portion thereof supplied hereunder or any system or equipment on which any such software may be
installed and which is not required pursuant to this Agreement. the furnishing of such advice or assistance
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will not subject GE to any liability, whether in contract, indemnity, warranty, tort, (including negligence),
strict liability, or otherwise.
4.4 The products to be licensed or sold hereunder are not intended for use in any nuclear, chemical
or weapons production facility or activity, or other activity where failure of the products could lead directly
to death, personal injury or severe physical or environmental damage. If so used, GE disclaims all liability
for any damages arising as a result of the hazardous nature of the business in question, including but not
limited to nuclear, chemical or environmental damage, injury or contamination, and Customer shall
indemnify, hold harmless and defend GE, its officers, directors, employees and agents against all such
liability, whether based on contract, indemnity, warranty, tort (including negligence), strict liability, or
otherwise, regardless of whether GE had knowledge of the possibility of such damages. The foregoing
indemnification shall not constitute a waiver of sovereign immunity or extend the parties liability beyond
the limits established in Section 768.28 of the Florida Statutes.
5. INDEMNITY
5.1 GE warrants that the Application Software shall be delivered free of any rightful claim for
infringement of any United States pa1ent, copyright, trademark or trade secret. If notified promptly in
writing and given authority, information and assistance, GE shall defend, or may settle, at its expense,
any suit or proceeding against Customer so far as based on a claimed infringement which would result in
a breach of this warranty and GE shall pay all damages and costs awarded therein against Customer due
to such breach. In case the Application Software is in such suit held to constitute such an infringement
and its use is enjoined. GE shall, at its expense and option, either procure for Customer the right to
continued use, or replace same with a non-infringing product or part, or modify the Application Software
so that it becomes non-infringing, or remove the software and refund the license charge pertaining thereto
(less reasonable depreciation for any period of use) and any transportation costs separately paid by
Customer. The foregoing states the entire liability of GE for patent, copyright, trademark and trade secret
infringement by the Licensed Software or any part thereof.
5.2 The indemnity under the preceding paragraph shall not apply to any use of Application Software
in conjunction with any other product in a combination not furnished by GE as a part of this transaction.
As to any such use in such combination, or any improper or unauthorized use, installation. or operation of
the Application Software. GE assumes no liability whatsoever for patent, copyright, trademark or trade
secret infringement and Customer will hold GE harmless against any infringement claims arising
therefrom (including. but not limited to reasonable attorney's fees). The foregoing indemnification shall not
consti1ute a waiver of sovereign immunity or extend the parties liability beyond the limits established in
Section 768.28 of the Florida Statutes.
6. TERM AND TERMINATION
6.1 Customer may terminate the license granted hereunder at any time by destroying the Licensed
Software together with all copies thereof and notifying GE in writing that all use of the Licensed Software
has ceased and that the Licensed Software has been destroyed.
6.2 GE. upon thirty (30) days notice. may terminate this Agreement and/or any license hereunder if
Customer fails to perform any obligation or undertaking to be performed by it under this Agreement or if
Customer attempts to assign this Agreement without the prior written consent of GE. Within twenty (20)
days after any such termination of this Agreement, Customer shall certify in writing to GE that all use of
the Licensed Software or the affected portion thereof has ceased, and that the Licensed Software or
portion thereof has been returned or destroyed, in accordance with GE's instructions.
6.3 Sections 4. 6 and 7 of this Agreement shall survive any expiration or termination and remain in
effect. Termination of this Agreement or any license hereunder shall not relieve Customer of its obligation
to pay any and all outstanding charges hereunder nor entitle Customer to any refund of such charges
previously paid.
7. EXPORT
If Customer intends to export (or reexport), directly or indirectly, the software products or technical
data relating thereto supplied hereunder or any portion thereof. it is Customer's responsibility to assure
compliance with U.S. and any other applicable governmental export control laws and, if appropriate. to
secure any required export licenses or approvals in Customer's own name. Customer is also responsible
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for the accuracy and completeness of any information or certification Customer provides for purposes of
export control compliance.
8. PAYMENT TERMS
All quoted charges arising pursuant to this Agreement are due upon delivery of the licensed Software
or any hardware delivered as part of the same Customer order (whichever is earlier) to which such
charges pertain and shall be paid in accordance with Section 218.70. Fla. Stats., otherwise known as the
"Local Government Prompt Payment Act.". Prices quoted are exclusive of all sales. use, and excise taxes
(and any other assessments in the nature of taxes however designated). Customer shall pay all import
duties and registration fees and all sales, use and excise taxes (and any other assessments in the nature
of taxes however designated) arising from the licensing of the licensed Software hereunder, exclusive of
taxes based on GE's net income. Collier County. Florida as a political subdivision of the State of Florida,
is exempt from payment of Florida sales tax to its vendors under Chapter 212. Florida Statutes, Certificate
of Exemption #21-07-019995-53c.
9. FORCE MAJEURE
GE shall not be responsible for failures to fulfill its obligations under this Agreement due to causes
beyond its control.
10. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Florida. without regard to its conflict of
law provisions. The provisions of the United Nations Convention on the International Sale of Goods shall
not apply to this Agreement.
11. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement with respect to the subject matter hereof and
supersedes all proposals, oral or written. all previous negotiations and all other communications between
the parties with respect to the subject matter hereof. These terms and conditions shall prevail.
notwithstanding any different, conflicting. or additional terms and conditions that may appear on any
purchase order or other instrument submitted by Customer. Deviation from these terms and conditions
are not valid unless confirmed in writing by an authorized representative of GE. The invalidity of any
portion of this Agreement shall not affect the remainder of this Agreement.
CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ THIS AGREEMENT, UNDERSTANDS
IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. CUSTOMER FURTHER
AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT
BETWEEN CUSTOMER AND GE AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT,
ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT. FURTHER. NO CHANGE OR AMENDMENT TO THIS
AGREEMENT SHALL BE EFFECTIVE UNLESS AGREED TO BY WRITTEN INSTRUMENT SIGNED BY
A DULY AUTHORIZED REPRESENTATIVE OF GE AND CUSTOMER.
Should you have any questions concerning this Agreement, you may contact GE by contacting: Legal
Department. GE Intelligent Platforms, 2500 Austin Drive, Charlottesville. VA 22911 or 1-800-433-2682.
COLLIER COUNTY BOARD OF COUNTY
Service
COMMISSIONERS
Erik Udstuen, VP Software and
Date
Date
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Approved for Legal Sufficiency:
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