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Item 4J - TOASE Review AttachmentDale Dean From: Jeremy Page Sent: Friday, October 19, 2018 2:39 PM To: Dale Dean Cc: Diane Ferguson; Debbie Smith; Deb Pointer; Allen Taylor Subject: RE: Esri Enterprise Agreement Review (JP) Attachments: Southlake - EA - 10-9-18.pdf; Esri Maintenance and Support Program.pdf; Esri Master Agreement.pdf Dale, I have reviewed the Enterprise Agreement and l don't see anything that it too particularly concerning. I will point out that Section 3.3 allows for either party to terminate the Agreement for a material breach by the other party if the breaching party does not cure its breach. Essentially, this would allow Esri to terminate the Agreement if the City for some reason materially breached and did not cure within 30 days. This is pretty standard, but I still wanted to bring it to the City's attention. I would also point that the Enterprise Agreement incorporates by reference two other agreements, the Master Agreement and the Maintenance and Support Program, both of which I have attached to this email as well. The language in both are pretty standard and again I found nothing that is terribly concerning. I will, though, bring to your attention a few of the sections of the Master Agreement: - Section 3.6 Subscription Fee Changes: this allows Esri to change subscription fees with only 30- or 60 -day notice. Because it looks like the only products the City is actually purchasing are year-long licenses, I don't believe this section applies to anything the City is purchasing, but I did want to make you aware of it just in case the City chooses to purchase any such subscriptions in the future. - Attachment B — Article 2 —Term and Termination: This allows the City to terminate the Agreement at any time upon written notice. However, in such a situation, the City would not be entitled to any sort of refund for the fees already paid. - Attachment B — Article 3.5 — Exclusive Remedy: This limits the City's remedies in situations where Esri breaches one of the limited warranties found in the agreement. Essentially, Esri will only repair any defective media, and may at its discretion, refund any fees the City has paid. - Attachment B —Article 4 — Limitation of Liability: This makes it so that Esri, as well as the City, are not liable to each other for certain types of damages. It also limits damages to the amount of the applicable license fees paid to Esri for the product that gave rise to the cause of action. So essentially, if something terrible happened that caused quite a bit of monetary damages, it is possible that Esri would only be liable for up to the $117,000 the City is paying to Esri as a part of this agreement. - Attachment B —Article 5 — Indemnification: It appears that Esri does agree to indemnify the City for any infringement claim, which is defined as a claim that the City's use of Esri products or services infringe on a patent, copyright, trademark, or trade secret. Esri has also agreed to indemnify the City for any claim for general non -infringement cases resulting from the acts of its directors, officers, employees, or agents. As far as I can tell, the Agreement does not require the City to indemnify Esri for any claims whatsoever. Like I said, everything looks good to go. Please let me know if you have any questions. Thank you, Jeremy Page Attorney at Law Taylor, Olson, Adkins, Sralla & Elam, L.L.P. 6000 Western Place, Suite 200 Fort Worth, Texas 76107 Telephone: 817.332.2580 Facsimile: 817.332.4740 E TAYLOR,OLSON>1DKlN33SRALL ,,LAM _ :t ss v:�ix a a0su3 CONFIDENTIAL NOTICE: This electronic transmission and any documents or other writings sent with it constitute confidential information which is intended only for the named recipient and client and which is subject to attorney/client privilege. If you have received this communication in error, do not read it. Please reply to the sender at Taylor, Olson, Adkins, Sralla & Elam, L.L.P. that you have received the message in error. Then delete it. Any disclosure, copying distribution or the taking of any action concerning the contents of this communication or any attachment(s) by anyone other than the named recipient is strictly prohibited. From: Deb Pointer Sent: Friday, October 12, 2018 1:31 PM To: Dale Dean Cc: Jeremy Page; Diane Ferguson; Debbie Smith Subject: RE: Esri Enterprise Agreement Review (JP) Mr. Dean: Jeremy Page will review the Enterprise Agreement (EA) with Esri and is aware of your request that his review must be completed on or before next Friday. Please feel free to communicate with Jeremy directly; however, please continue to copy me so I can keep this project on proper diary. As always, please let us know if there is anything else you. Have a great weekend, too. Sincerely, /Deb Deb Pointer, Paralegal Taylor, Olson, Adkins, Sralla & Elam, L.L.P. TAYLOR O LSO N •ADKJ NS • S RAL LA- E L.AM ALr-J &a EYS i LGON:EL9fli 6000 Western Place, Suite 200 Fort Worth, Texas 76107 Telephone: (817) 332-2580, ext. 234 Telecopier: (817) 332-4740 duointer(atoase.com 2018 TAPS Committee — Speaker Committee Co -Chair Member Renewal Spot Audit Committee Chair Mentor Program Ad Hoc Committee Chair Membership Committee Sub -Chair, District 3 Paralegal Division of the State Bar of Texas