ESRI+Contract+Signed+11-25-2020.pdf

Master Purchase Agreement

E500

Page 1 of 10 February 5, 2018 11/24/2020

Agreement No. 00179168.0

This Master Purchase Agreement ("MPA") is between the governmental entity ("Signing Entity") identified below and Environmental Systems Research Institute, Inc. ("Esri"). This MPA enables Customer to acquire Esri Offerings over a defined period of time.

The authority under which MPA No. 00179168.0 is entered into is found within MPA 2014MPA290 that allows for Agreement renegotiation as follows:

Renegotiation Option

In view of the fact that it is unknown how long the products and services will be employed by Customer and that Customer will require ongoing maintenance and support of the products for as long as the system is operational, therefore after completion of the initial term of the Agreement including any extensions and renewals, State and Esri may renegotiate the Agreement upon mutual agreement of the parties.

Cooperative Purchasing State Term Contract.

This MPA is a cooperative purchasing contract established pursuant to North Dakota Century Code (NDCC) sections 54-44.4-13. This MPA is made available to State entities, institutions under the jurisdiction of the State Board of Higher Education, other North Dakota government entities (including counties, cities, townships, public primary and secondary educational entities, governmental boards and commissions), nonprofit entities established on behalf of public entities, tribal agencies, transportation providers under N.D.C.C chapter 39-04.2, and the International Peace Garden. Participation in this open-ended MPA is not mandated; therefore, the estimated volume of this MPA is not known.

This MPA is composed of the following documents, notwithstanding anything herein to the contrary, in the event of any inconsistency or conflict among the documents making up this MPA, the documents must control in this order of precedence:

1. EA Purchasing Agreement (only applicable for an Authorized Entity that executes an EA Purchasing Agreement with Esri)

2. Enterprise Agreement Addendum (only applicable for an Authorized Entity that executes an EA Purchasing Agreement with Esri)

3. MPA Terms and Conditions, including this signature page, as may be amended (“MPA”)

4. Master Agreement #00274812.0 (“Agreement” or “Master Agreement”)

5. Sample Task Order

6. MPA Price List, E417M-4Q2020

7. Time and Materials Rate Schedule

[SIGNATURE PAGE TO FOLLOW]

Page 2 of 10 February 5, 2018

11/24/2020 LG

The parties acknowledge that they have read and understand this MPA and agree to be bound by the terms and conditions contained herein.

This MPA constitutes the sole and entire agreement of the parties as to the subject matter set forth herein and supersedes any previous agreements, understandings, and arrangements between the parties relating to such subject matter. Any modification(s) or amendment(s) to this MPA must be in writing and signed by an authorized representative of each party.

IN WITNESS WHEREOF, the parties have caused this MPA to be executed and effective as of December 2, 2020.

STATE OF NORTH DAKOTA

(“Signing Entity”)

ENVIRONMENTAL SYSTEMS RESEARCH

INSTITUTE, INC. (“Esri”)

Signature:

{{*Sig_es_:signer1:signature}}

Signature:

{{*Sig_es_:signer2:signature}}

Printed Name: {{*OS1N_es_:signer1:fullname}} Printed Name: {{*ES1N_es_:signer2:fullname}} Title: {{*Ttl_es_:signer1}} Title: {{*Ttl_es_:signer2}} Date: {{!Dtl_es_:signer1:Date}} Date: {{!Dtl_es_:signer2:Date}}

Customer Contact Information

Contact: Telephone:

Address: Fax:

Email:

Chris Johnson Manager, Comm'l & Gov't Contracts 11/25/2020

Gabriel Hoggarth

Procurement Officer II

11/25/2020

Page 3 of 10 February 5, 2018

STATE AND LOCAL MPA TERMS AND CONDITIONS

(E500 February 5, 2018)

ARTICLE 1—DEFINITIONS

All definitions in other parts of the MPA shall have the same meaning in this MPA Terms and Conditions. In addition to the definitions within the Master Agreement (“Agreement”) and in other parts of this MPA, the following definitions apply to this MPA:

a. "Authorized Entity" means an agency, department, division, or political subdivision of the governmental entity authorized by Signing Entity to order and acquire Esri Offerings under this MPA.

b. "Customer" means the Signing Entity or an Authorized Entity that places orders pursuant to this MPA.

c. "Master Agreement" (or “Agreement”) means the applicable license agreement incorporated by this reference that is (i) found at http://www.esri.com/legal/software-license and available in the installation process requiring acceptance by electronic acknowledgment or (ii) a signed license agreement between Esri and Signing Entity that supersedes such electronically acknowledged license agreement.

ARTICLE 2—TERM OF AGREEMENT

2.1 Term. Customer's right to purchase under this MPA shall remain in effect for two (2) years from the effective date (the last date of execution) unless terminated earlier as set forth in Article 5—Termination; Cancellation. The term may be extended upon mutual written agreement. The term of any Esri Offering licenses ordered through this MPA shall be as stated in the Master Agreement.

2.2 No Automatic Renewal. This MPA will not automatically renew. Customer will provide written notice to Esri of its intent to renew this MPA at least sixty (60) days before the scheduled termination date.

2.3 Extension Option. Customer reserves the right to extend the MPA for an additional mutually agreed upon period of time, beyond the original expiration date of the MPA upon written agreement by both parties.

2.4 Renewal Option. Customer may renew this MPA upon satisfactory completion of the initial term with mutual written agreement. Customer reserves the right to execute up to four (4) options to renew this MPA annually under the same terms and conditions for a period of twelve (12) months each upon written agreement by both parties at each renewal.

2.5 Renegotiation Option. In view of the fact that it is unknown how long the products and services will be employed by Customer and that Customer will require ongoing maintenance and support of the products for as long as the system is operational, therefore after completion of the initial term of the MPA and any extensions and renewals, Signing Entity and Esri may renegotiate the MPA upon mutual agreement of the parties.

ARTICLE 3—PRODUCT OFFERINGS

3.1 Discontinued and New Items. Esri may, at its sole discretion, discontinue offering any Esri Offerings included in this MPA upon the submittal of an updated MPA Price List. Esri may, at its sole discretion, offer new Esri Offerings, or larger quantity discount pricing by the submittal of an updated MPA Price List.

3.2 Master Agreement. Esri may require additional or different license terms prior to the use of new Esri Offerings. Such additional terms shall be available at http://www.esri.com/legal, included with a quote, or included with the deliverable Esri Offerings. The then-current Master Agreement shall become part of this MPA upon

(i) ordering Esri Offerings or (ii) thirty (30) days after Customer's receipt of Esri Offerings, whichever is sooner.

3.3 Enterprise Agreement. An Enterprise Agreement is a multiyear offering for a package of Esri Offerings and additional license deployment grants, tailored to the Authorized Entity. When an Enterprise Agreement is requested, Esri will prepare a proposal letter for the Authorized Entity, which will include the Esri Offerings package, price, duration, and quantity. The Authorized Entity may purchase an Enterprise Agreement under the terms and conditions of this MPA and an EA Purchasing Agreement (a sample of which is attached hereto). The

Page 4 of 10 February 5, 2018

EA Purchasing Agreement for the Enterprise Agreement will be between the Authorized Entity and Esri. The Enterprise Agreement option is included in the MPA Price List.

ARTICLE 4—GRANT OF LICENSE AND SCOPE OF USE

The license grant and permitted uses specified in the Master Agreement are restricted to use within the continental United States; Hawaii; Alaska; and US territories, excluding Puerto Rico and the US Virgin Islands.

ARTICLE 5—TERMINATION; CANCELLATION

5.1 Termination

a. Customer may terminate this MPA or any Task Order at any time on thirty (30) days' written notice to Esri and upon payment to Esri of all amounts due to date pursuant to an order, including reasonable termination expenses and the pro rata MPA price for the Task Orders affected.

b. Either party may terminate this MPA or any license for a material breach that is not cured within thirty

(30) days of written notice to the breaching party, except that termination is immediate for a material breach that is impossible to cure.

c. Esri, at its sole election, may terminate any Authorized Entity’s Task Order or right to participate in this MPA in accordance with this provision without terminating this MPA with respect to Signing Entity or any other Authorized Entity. Should Esri terminate an Authorized Entity it shall provide written notice to Signing Entity and the Authorized Entity.

d. Customer by written notice to Esri, may terminate the whole or any part of this MPA for lack of funding or authority, under any of the following conditions:

1. If funding from federal, state, or other sources is not obtained and continued at levels sufficient to allow for purchase of the services or supplies in the indicated quantities or term.

2. If federal or state laws or rules are modified or interpreted in a way that the services are no longer allowable or appropriate for purchase under this MPA or are no longer eligible for the funding proposed for payments authorized by this MPA.

Termination of this MPA under this subsection is without prejudice to any obligations or liabilities of either party already accrued prior to termination.

e. Esri may terminate this MPA immediately upon written notice to Customer in the event that one or more of the following occur:

Insolvency of Customer

1. Customer becomes insolvent, ceases to pay its debts in the ordinary course of business, is unable to pay its debts as they become due, or makes an assignment for the benefit of creditors;

2. A trustee or receiver is appointed for any or all of Customer's assets;

3. Any bankruptcy or insolvency proceeding under any federal or state bankruptcy or insolvency code, or similar law, whether voluntary or involuntary, is commenced by or against Customer;

4. Customer is dissolved or liquidated;

Default or Breach by Customer

5. Customer defaults under this MPA three (3) or more times within any six (6)-month period, regardless of whether such defaults are cured;

6. Customer engages in the unauthorized use of the COTS Software;

7. Customer engages in the unauthorized use, reproduction, or disclosure of Deliverables or

Services Output;

8. Customer breaches any provision of this MPA and there is no possibility of cure;

9. Customer fails to pay after ten (10) days' written notice of the past due amounts to Esri.

Page 5 of 10 February 5, 2018

f. Obligations upon Termination for Products. Upon termination of the MPA, all licenses, or subscriptions, granted hereunder terminate as well. Upon termination of a license, subscription, or the Master Agreement, Customer will

1. stop accessing and using the terminated or expired Esri Offerings;

2. clear any client-side data cache derived from Online Services; and

3. uninstall, remove, and destroy all copies of affected Product(s) in Customer's possession or control, including any modified or merged portions thereof, in any form, and execute and deliver evidence of such actions to Esri or its authorized distributor.

g. License Survival. Upon expiration of this MPA or voluntary termination of this MPA, Customer may continue to retain and use such licensed Products in accordance with the then-current Esri Master Agreement. Customer may then directly and separately contract for software maintenance.

h. Obligations upon Termination for Professional Services. On termination of this MPA, all accounts and payments will be processed according to financial arrangements set forth herein for performance rendered to the date of termination. After termination, Customer shall no longer be permitted to place orders under this MPA.

1. Upon termination by Esri, all outstanding Task Orders shall be subject to cancellation, acceptance, or rejection, at the sole discretion of Esri.

2. In the event of termination by Esri pursuant to Subsections 5–9 of Sub-Section e of this Article, the due dates of all invoices for amounts owed by Customer to Esri shall be accelerated automatically so that such amounts become due and payable on the effective date of the termination, regardless of the payment term provisions set forth in this MPA.

i. Termination of Professional Services by Customer. Failure of Esri to perform Professional Services under the MPA, including any corrections or modifications to achieve acceptance in accordance with the agreed upon Scope of Services in a Task Order, may cause Customer to terminate the Task Order, for Material breach in accordance with Section 5.1 b. The rights and remedies provided in the above clause are not exclusive and are in addition to any other rights and remedies provided by law or under this MPA.

j. Customer Obligations upon Termination. On termination of this MPA, all accounts and payments will be processed according to financial arrangements set forth herein for performance rendered to the date of termination. After termination, Customer shall no longer be permitted to place orders under this MPA.

k. License Survival. Upon expiration of this MPA or voluntary termination of this MPA, Customer may continue to retain and use such licensed Products in accordance with the Master Agreement. Customer may then directly and separately contract for Maintenance.

5.2 Cancellation of an Order. Purchase orders, other than for the initial purchase, may be canceled by Customer in whole or in part, upon thirty (30) days' written notice to Esri. There will be no cancellation charge for canceled Products unless such Products have been delivered. If Products have been shipped, the cancellation will require Customer payment of return shipping costs. There are no refunds for cancellation of a subscription or Maintenance if the term for the subscription or Maintenance has started.

ARTICLE 6—NO MINIMUM PURCHASE

Customer does not guarantee to purchase any certain quantity under this MPA.

ARTICLE 7—ORDERS

7.1 Customer Purchase Orders. Customer shall issue purchase orders to Esri for Esri Offerings based on the pricing specified in this MPA. The terms and conditions of this MPA shall govern all orders issued by Customer.

Any additional or different terms included with an order are void and of no legal effect even if Esri processes the order without taking exception to such additional or different terms.

Page 6 of 10 February 5, 2018

7.2 Purchase Order Requirements. The following information shall be included in each purchase order:

a. Name or identification of Customer, place of delivery, and the end-user name and contact information

b. Purchase order number

c. Quantity, description, and unit price

d. On the face of the purchase order, the following printed statement: "Subject to Master Purchase

Agreement No. (00179168.0)"

7.3 Additional Quotes. Customer may request a quote for any new or unlisted Esri Offerings and issue a purchase order under this MPA.

7.4 Authorized Entity. An Authorized Entity may order or acquire Esri Offerings subject to the terms and conditions of this MPA. An Authorized Entity will be required to incorporate by reference the terms of this MPA into any purchase order or other related ordering document. Esri shall not fill any purchase orders that do not adequately provide the information identified in Section 7.2.

ARTICLE 8—PRICING

8.1 Pricing. Esri will provide Esri Offerings specified in the incorporated MPA Price List, which are exclusive of shipping, installation, and applicable taxes. Esri may update the MPA Price List by email notice no more than once each calendar quarter except prices for individual items, which may be updated by email at any time if they fall below Esri's GSA pricing.

8.2 Professional Services. Professional Services are available on a time and materials or firm fixed price basis.

The labor rates are subject to annual escalation in January of each year. The scope of work and any additional terms are subject to mutual agreement in the Task Order.

8.3 Training Services. Training will be provided in accordance with the policies defined at https://www.esri.com/training/ and the training terms and conditions incorporated within the Master Agreement.

Training prices are subject to annual escalation, in January of each year.

8.4 Travel and Per Diem.

Signing Entity shall reimburse Esri for expenses related to travel at amounts not to exceed those outlined below:

a. Lodging: Reimbursement shall not exceed the then-current, published GSA rate for the travel location.

Copies of receipts are required for lodging reimbursement. Signing Entity shall not reimburse for incidental and miscellaneous expenses charged to the room, including alcohol, telephone charges, or entertainment (e.g., movies).

b. Transportation: Air travel shall be reimbursed by Signing Entity at the actual cost of airfare for coach class travel only. Esri shall make air travel arrangements at least fourteen (14) days in advance whenever possible. Reimbursement for rented, chartered, or contracted vehicle transportation shall be limited to reasonable rates as determined by Signing Entity.

c. Meals: Meals shall be paid on a per diem basis for each day of travel at then-current, published GSA per diem rate for the travel location. Per Diem for the first and last day of travel shall be paid at seventy-five percent (75%) of the GSA per diem rate. Requests for per diem payments must include the start and end dates of travel, the location where the services are performed, and the allowable per diem amount for each trip on the billing/invoice.

Payment for any travel costs that exceed the travel budget as agreed upon by the parties must be approved by Signing Entity’s project manager.

ARTICLE 9—NOTICE

Notice. Notice required or contemplated by either party must be delivered in person or by courier, express mail, facsimile, or postage-prepaid certified or registered airmail addressed to the party for whom it is intended at the

Page 7 of 10 February 5, 2018 address specified herein. Either party may change its address by giving prompt written notice to the other party of the change.

Signing Entity Contact: Esri Contact:

Gabriel Hoggarth Director, Contracts and Legal Services ND State Procurement Office Esri 600 E Blvd Ave 380 New York Street Bismarck, ND 58505 Redlands, CA 92373-8100 Phone: 701-328-2740 Phone: 909-793-2853 Fax: 701-328-1615 Fax: 909-307-3020

Notice provided under this Subsection does not meet the notice requirements for monetary claims against the Signing Entity found at N.D.C.C. § 32-12.2-04.

ARTICLE 10—MISCELLANEOUS

10.1 Confidentiality

Esri shall not use or disclose any information it receives from Customer under this MPA that Customer has previously identified as confidential or exempt from mandatory public disclosure except as necessary to carry out the purposes of this MPA or as authorized in advance by Customer. Customer shall not disclose any information it receives from Esri that Esri has previously identified as confidential and that Customer determines in its sole discretion is protected from mandatory public disclosure under a specific exception to the North Dakota public records law, N.D.C.C. ch. 44-04. The duty of Customer and Esri to maintain confidentiality of information under this section continues beyond the term of this MPA.

10.2 Confidentiality of Deliverables and Services Output.

a. Unless otherwise agreed in writing, the Deliverables and Services Output are Esri confidential information, and Customer shall preserve and protect the confidentiality of said Deliverables and Services Output to the extent permitted by North Dakota law. Insofar as its rights may be legally restricted, Customer agrees not to reverse engineer or decompile Deliverables or Services Output delivered only in object code, executable code, or formats subject to similar or greater means of access control (collectively, "Secure Formats"). For Deliverables or Services Output delivered in source code or other human-readable formats, Customer shall have met its obligations under this Article if its disclosure of Deliverables or Services Output is limited to Deliverables or Services Output in Secure Formats, provided that the means for reverse engineering, decompiling, or disassembling such Deliverables or Services Output is withheld from such disclosure, and the person or entity in receipt of such Deliverables or Services Output similarly agrees not to perform such acts or allow others to do so.

b. Except as provided in the preceding paragraph, Customer shall not disclose any Deliverables or Services Output to employees or third parties without the advanced written consent of Esri. However, Customer may, without such consent, make such disclosures to employees as are reasonably required for the Customer's authorized use of the COTS Software, provided that such disclosure is strictly limited to the portions of the Deliverables or Services Output needed for that purpose. The disclosures permitted under this paragraph shall not relieve Customer of its obligation to maintain the Deliverables or Services Output in confidence and comply with all applicable laws and regulations of the United States.

c. Customer shall not have any obligation to protect any part of a Deliverable or Services Output that it can prove

1. was in Customer's possession before receipt from Esri;

2. is or becomes a matter of public knowledge through no fault of Customer;

3. is rightfully disclosed by a third party without a duty of confidentiality;

4. is disclosed by Esri to a third party without a duty of confidentiality;

5. is independently developed by Customer; or

6. is required to be disclosed by operation of law.

10.3 Compliance with Public Records Law. Under the North Dakota public records law and subject to the Confidentiality clause of this MPA, certain records may be open to the public upon request.

Page 8 of 10 February 5, 2018

Public records may include: (i) records Signing Entity receives from Esri under this MPA, (ii) records obtained by either Party under this MPA, and (iii) records generated by either Party under this MPA.

Esri agrees to contact Signing Entity promptly upon receiving a request for information under the public records law and to comply with Signing Entity’s instructions on how to respond to such request.

10.4 Independent Contractor. Esri is, and at all times will be, an independent contractor. Nothing in this MPA shall be deemed to create an employer/employee, principal/agent, or joint venture relationship. Esri retains sole and absolute discretion in the manner and means of carrying out Esri’s activities and responsibilities under this MPA, except to the extent specified in this MPA. Neither party has the authority to enter into any contracts on behalf of the other party or otherwise act on behalf of the other party.

10.5 Successor and Assigns. Customer shall not assign, sublicense, or transfer Customer's rights or delegate Customer's obligations under this MPA without Esri's and its authorized distributor's prior written consent, and any attempt to do so without consent shall be void. This MPA shall be binding on the respective successors and assigns of the parties to this MPA.

Customer shall have the right to terminate for convenience should Esri assign or otherwise transfer or delegate any right or duty under this MPA to a party that is identified in accordance with the laws of the State of North Dakota as being debarred or prohibited from doing business with Customer.

10.6 Spoliation-Notice of Potential Claims. Esri shall promptly notify Customer of all potential claims that arise or result from this MPA. Esri shall also take all reasonable steps to preserve all physical evidence and information that may be relevant to the circumstances surrounding a potential claim, while maintaining public safety, and grants to Customer the opportunity to review and inspect the evidence, including the scene of an accident.

10.7 Force Majeure. Neither party shall be held responsible for delay or default due to causes beyond that party’s reasonable control. Such causes may include, but are not limited to, fire, riot, terrorism, acts of God or war. The affected party will, if possible under the circumstances, give notice to the other party promptly upon occurrence of the event causing the delay or default or that is reasonably expected to cause a delay or default.

10.8 Injunctive Relief. Esri shall immediately report to Customer any and all unauthorized disclosures or uses of Customer’s Confidential Information of which Esri or its staff is aware or has knowledge. Esri acknowledges that any unauthorized publication or disclosure of Customer’s Confidential Information to others may cause immediate and irreparable harm to Customer. If Esri should publish or disclose such Confidential Information or Proprietary Information without authorization, Customer shall immediately be entitled to seek injunctive relief or any other remedies to which it is entitled under law or equity without requiring a cure period.

10.9 Severability. If any term of this MPA is declared to be illegal or unenforceable by a court having competent jurisdiction, the validity of the remaining terms is unaffected and, if possible, the rights and obligations of the parties are to be construed and enforced as if the MPA did not contain that term.

10.10 Right to Remedies and Cumulation of Rights. Except as otherwise set forth in the MPA or Master Agreement, no remedy conferred by any of the specific provisions of the MPA is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given under this MPA, now or in the future existing at law or in equity or by statute or otherwise.

10.11 Non-Waiver. Either party’s failure to exercise any of its rights under the MPA, its delay in enforcing any right, or its waiver of its rights on any occasion, shall not constitute a waiver of such rights on any other occasion.

No course of dealing by either party in exercising any of its rights shall constitute a waiver thereof. No waiver of any provision of the MPA shall be effective unless it is in writing and signed by the party against whom the waiver is sought to be enforced.

10.12 Governing Law

a. This MPA is governed by and construed in accordance with the laws of the State of North Dakota.

Page 9 of 10 February 5, 2018

b. Licensees in the United States of America, Its Territories, and Outlying Areas. This MPA shall be governed by and construed in accordance with the laws of the State of North Dakota without reference to conflict of laws principles, except that US federal law shall govern in matters of intellectual property.

c. Customer does not agree to any form of binding arbitration, mediation, or other forms of mandatory alternative dispute resolution. The parties have the right to enforce their rights and remedies in judicial proceedings. Customer does not waive any right to a jury trial.

10.13 US Government Licensee. The Products are commercial items, developed at private expense, provided to Customer under this License Agreement. If Customer is a US government entity or US government contractor, Esri licenses Products to Customer in accordance with this License Agreement under FAR Subparts 12.211/12.212 or DFARS Subpart 227.7202. Esri Data and Online Services are licensed under the same DFARS Subpart 227.7202 policy as commercial computer software for acquisitions made under DFARS. The commercial license rights in this License Agreement strictly govern Customer's use, reproduction, or disclosure of Products.

Customer may transfer Software to any licensed government procuring agency facility to which computer(s) on which Software is installed are transferred. If any court, arbitrator, or board holds that Customer has greater rights to any portion of Products under applicable public procurement law, such rights shall extend only to the portions affected.

10.14 Equitable Relief. Customer agrees that any breach of this MPA by Customer may cause irreparable damage and that, in the event of such breach, in addition to any and all remedies at law, Esri or its authorized distributor shall have the right to seek an injunction, specific performance, or other equitable relief in any court of competent jurisdiction.

10.15 Nondiscrimination and Compliance with Laws. Esri agrees to comply with all applicable U.S. laws, rules, regulations and policies, including those relating to nondiscrimination, accessibility and civil rights. Esri agrees to timely file all required reports, make required payroll deductions, and timely pay all taxes and premiums owed, including sales and use taxes and unemployment compensation and workers' compensation premiums.

Esri shall have and keep current at all times during the term of this MPA all licenses and permits required by U.S.

law.

10.16 State Audit. All records, regardless of physical form, and the accounting practices and procedures of Esri relevant to this MPA are subject to examination by the North Dakota State Auditor, the Auditor’s designee, or Federal auditors. Esri shall maintain all of these records for at least three (3) years following completion of this MPA and be able to provide them at any reasonable time, with reasonable prior notice, and with Esri’s permission, which shall not be unreasonably withheld.

10.17 Reporting. Upon written request by Signing Entity, Esri shall have a reasonable period of time after receipt of such request to create and submit a quarterly report to the Signing Entity’s Contract Administrator showing the quantities and dollar volume of purchases by each agency under this MPA. Signing Entity shall be limited to one

(1) such request per quarter. Quarters shall be declared in sequence with fiscal quarters (March, June, September and December).

10.18 Software Audit. Esri may, upon sixty (60) calendar days’ notice to Customer, but not more frequently than once per year, either request a signed certification by an officer of Customer verifying that the software is being used in accordance with the terms of this MPA or audit Customer’s use of the software to ensure compliance with the terms and conditions of this MPA. Any such audit shall be conducted at Esri’s expense during regular business hours at Customer’s offices and shall not unreasonably interfere with Customer’s business activities.

Esri shall provide documentation to Customer defining the scope of the audit not less than thirty (30) calendar days prior to the audit. Customer shall have sixty (60) calendar days to review Esri’s audit findings. If an audit reveals that Customer’s use of the Software exceeds the use permitted hereunder, then Esri may invoice Customer for the applicable additional amounts based on the price agreement between the parties as of the date of completion of the audit.

10.19 Feedback. Esri may freely use any feedback, suggestions, or requests for Product improvements that Customer provides to Esri.

10.20 Patents. Customer may not seek, and may not permit any other user to seek, a patent or similar right worldwide that is based on or incorporates any Esri technology or services. This express prohibition on patenting

Page 10 of 10 February 5, 2018 shall not apply to Customer's software and technology except to the extent that Esri technology or services, or any portion thereof, are a part of any claim or preferred embodiment in a patent application or a similar application.

Master Agreement Product and Services

E204 Page 1 of 25 March 5, 2020

Agreement No. 00274812.0

This Master Agreement ("Agreement") is between the entity shown below ("Customer") and Environmental Systems Research Institute, Inc. ("Esri"), a California corporation with a place of business at 380 New York Street, Redlands, California 92373-8100 USA.

This Agreement is the sole and entire agreement of the parties as to the subject matter of this Agreement and supersedes any previous agreements, understandings, and arrangements relating to such subject matter. Neither party has relied on any statement, representation, or warranty not expressly stated in this Agreement. This Agreement comprises this signature page, the terms and conditions that begin on the following page, and all referenced attachments. Except for Product or Service descriptions, quantities, pricing, and delivery instructions, or as agreed in an Ordering Document signed by both parties, all terms included in any Ordering Document are void and of no effect. Any modification(s) or amendment(s) to this Agreement must be in writing and signed by both parties.

The parties may sign this Agreement in counterparts or via electronic signatures; such execution is valid even if an original paper document bearing both parties' original signatures is not delivered. This Agreement is executed and effective as of the last date signed below.

The authorized representatives of each party accept and agree to the terms of this Agreement by signing below:

STATE OF NORTH DAKOTA ENVIRONMENTAL SYSTEMS RESEARCH

(Customer) INSTITUTE, INC. (Esri)

Legal Address: 380 New York Street, Redlands, CA 92373-8100

By: By:

Authorized Signature Authorized Signature

Printed Name: Printed Name:

Title: Title:

Date: Date:

Customer Contact Information

Contact: Telephone:

Address: Fax:

City, State, ZIP: Email:

11/25/2020

Manager, Comm'l & Gov't Contracts

Chris JohnsonGabriel Hoggarth

Procurement Officer II

11/25/2020

600 E Blvd Ave Bismarck, ND 58505

E204 Page 2 of 25 March 5, 2020

Attachment A contains definitions of capitalized terms used throughout this Agreement. Each section of this Agreement may include additional definitions that are used exclusively within that section.

1.0 GENERAL GRANT OF RIGHTS AND RESTRICTIONS

1.1 Grant of Rights. In consideration of Customer's payment of all applicable fees and in accordance with this Agreement, Esri

a. Provides Services as set forth in this Agreement;

b. Grants to Customer a nonexclusive, nontransferable right and license or subscription to access and use

Esri Offerings as set forth in the Specifications and applicable Ordering Documents; and

c. Authorizes Customer to copy and make derivative works of the Documentation for Customer's own internal use in conjunction with Customer's authorized use of Esri Offerings. Customer will include the following copyright attribution notice acknowledging the proprietary rights of Esri and its licensors in any derivative work:

"Portions of this document include intellectual property of Esri and its licensors and are used under license. Copyright © [Customer will insert the actual copyright date(s) from the source materials.] Esri and its licensors. All rights reserved."

The grants of rights in this section 1.1: (i) continue for the duration of the subscription or applicable Term or perpetually if no Term is applicable or identified in the Ordering Documents and (ii) are subject to additional rights and restrictions in this Agreement including Attachment B.

1.2 Consultant or Contractor Access. Customer may authorize its consultants or contractors to (i) host Esri Offerings for Customer's benefit and (ii) use Esri Offerings exclusively for Customer's benefit. Customer will be solely responsible for its consultants' and contractors' compliance with this Agreement and will ensure that each consultant or contractor discontinues use of Esri Offerings upon completion of work for Customer. Access to or use of Esri Offerings by consultants or contractors that is not exclusively for Customer's benefit is prohibited.

1.3 Reservation of Rights. All Esri Offerings are the copyrighted works of Esri or its licensors; all rights not specifically granted in this Agreement are reserved.

1.4 Customer Content. Esri does not acquire any rights in Customer Content under this Agreement other than as needed to provide Esri Offerings and Services to Customer.

2.0 SOFTWARE AND ONLINE SERVICES

2.1 Definitions. The following definitions supplement the definitions provided in Attachment A:

a. "Anonymous Users" means all who have public access (i.e., without having to provide a Named User Credential) to any part of Customer Content or Customer's Value-Added Applications.

b. "App Login Credential(s)" means a system-generated application login and associated password, provided when registering a Value-Added Application with ArcGIS Online, which when embedded in a Value-Added Application allows the Value-Added Application to access and use Online Services.

c. "Commercial App Deployment License" means a license to distribute Value-Added Applications to third parties for a fee.

d. "Concurrent Use License" means a license to install and use Software on computer(s) on a network, provided that the number of simultaneous users may not exceed the number of licenses acquired. A Concurrent Use License includes the right to run passive failover instances of Concurrent Use License management software in a separate operating system environment for temporary failover support.

e. "Deployment License" means a license to incorporate ArcGIS Runtime components in Value-Added Applications and distribute Value-Added Applications to Customer's end users.

f. "Deployment Server License" means a license to use Software under a Server License for all uses permitted in this Agreement and as described in the Documentation.

g. "Development Server License" means a license to use Software under a Server License only to build and test Value-Added Applications as described in the Documentation.

h. "Development Use" means the right to install and use Products to build and test Value-Added Applications as described in the Documentation.

E204 Page 3 of 25 March 5, 2020

i. "Dual Use License" means the right to install Software on a desktop computer and use it simultaneously with either a personal digital assistant (PDA) or handheld mobile computer as long as the Software is only used by a single individual at any time.

j. "Failover License" means a license to install Software on redundant systems for failover operations, but the redundantly installed Software may be operational only during the period the primary site is nonoperational. Except for system maintenance and updating of databases, the redundant Software installation(s) will remain dormant while the primary site (or any other redundant site) is operational.

k. "Named User(s)" is Customer's employee, agent, consultant, or contractor to whom Customer has assigned a unique, secure login credential (identity) enabling access to a Product that requires such identity in order to access identity-managed capabilities within a Product for Customer's exclusive benefit.

For educational use, Named Users may include registered students.

l. "Named User Credential(s)" means an individual person's login and associated password enabling that person to access and use Products.

m. "Named User License" means the right for a single Named User to use a specific Esri Offering.

n. "Online Services Subscription" means a limited-term subscription conveying the right for one or more

Named Users to access and use Online Services.

o. "Redistribution License" means a license to reproduce and distribute Software provided that

1. Customer reproduces and distributes the Software in its entirety;

2. A license agreement that protects the Software to the same extent as this Agreement accompanies each copy of the Software, and the recipient agrees to the terms and conditions of the license agreement;

3. Customer reproduces all copyright and trademark attributions and notices; and

4. Customer does not charge a fee to others for the use of the Software.

p. "Server License" means a license to install and use Software on a server computer. Server Licenses may be subject to a limited number of server cores or distributed deployment on multiple servers as described in the Ordering Documents or Documentation. If the Software description includes failover use rights, each Server License includes a Failover License.

q. "Service Credit(s)" means a unit of exchange for consumption of services that can be used with an Online Services Subscription.

r. "Sharing Tools" means publishing capabilities included with Customer's authorized use of Online Services that allow Customer to make Customer Content and Value-Added Applications available to third parties or Anonymous Users.

s. "Single Use License" means a license for a single authorized end user to install and use Software on a single computer. The single authorized end user may also install a second copy for the end user's exclusive use on a second computer as long as only one (1) copy of Software is in use at any time. No other end user may use Software under the same license at the same time for any other purpose.

t. "Staging Server License" means a license to use Software under a Server License to build and test Value-Added Applications and map caches; conduct user acceptance, performance, and load testing of other third-party software; stage new commercial data updates; and conduct training activities as described in the Documentation. Customer may use Value-Added Applications and map caches with Development and Deployment Server Licenses.

2.2 License and Subscription Types. Esri provides Software Products under one (1) or more of the license or subscription types identified in the definitions above. The Documentation and Ordering Documents identify which license or subscription type(s) applies to the ordered Products.

2.3 Software Terms of Use.

a. Customer may

1. Install, access, or store Software and Data on electronic storage device(s);

2. Make archival copies and routine computer backups;

3. Install and use a newer version of Software concurrently with the version to be replaced during a reasonable transition period not to exceed six (6) months, provided that the deployment of either version does not exceed Customer's licensed quantity; thereafter, Customer will not use more

E204 Page 4 of 25 March 5, 2020

Software in the aggregate than Customer's total licensed quantity. This concurrent use right does not apply to Software licensed for Development Use;

4. Move Software in the licensed configuration to a replacement computer;

5. Distribute Software and any associated Authorization Codes required for use of a Deployment

License to third parties; and

6. Governmental or not-for-profit organizations that operate a website or offer Internet services may use server Software for revenue-generating purposes on a cost-recovery basis and not for profit.

b. Customer may customize Software using any macro or scripting language, APIs, or source or object code libraries but only to the extent that such customization is described in the Documentation.

c. Customer may use all fonts provided with Software for any authorized use of the Software. Customer may also use Esri fonts separately to print any output created by the Software. Any use restrictions for third-party fonts included with the Software are set forth in the font file itself.

d. Esri publishes Product-specific Software terms of use at http://www.esri.com/legal/scope-of-use.

2.4 Online Services Terms of Use.

a. Online Services Descriptions. Esri publishes Online Services Subscription-specific terms of use at http://www.esri.com/legal/scope-of-use. Use of Online Services is also subject to the Cloud Services terms found in Attachment B.

b. Modifications of Online Services. Esri may change Online Services and associated APIs at any time, subject to thirty (30) days' notice of material changes and ninety (90) days' notice for deprecations. If any modification, discontinuation, or deprecation of Online Services causes a material, adverse impact to Customer's operations, Esri may, at its discretion, attempt to repair, correct, or provide a workaround for Online Services. If a viable solution is not commercially reasonable, Customer may cancel its subscription to Online Services, and Esri will issue a prorated refund.

c. Sharing Customer Content. Sharing Customer Content using Sharing Tools enables third parties to use, store, cache, copy, reproduce, (re)distribute, and (re)transmit Customer Content through Online Services.

Esri is not responsible for any loss, deletion, modification, or disclosure of Customer Content resulting from use or misuse of Sharing Tools. Customer's use of Sharing Tools is at Customer's sole risk.

d. Limits on Use of Online Services, Service Credits. Each Online Services Subscription includes Service Credits as described in the applicable Ordering Document. Each Service Credit entitles Customer to consume a set amount of Online Services, the amount varying depending on the Online Services that Customer is using. As Customer consumes Online Services, Service Credits are automatically debited from Customer's subscription, up to the maximum number of Service Credits available. Customer may purchase additional Service Credits as needed. Esri will notify Customer's subscription account administrator when Customer's Service Credit consumption reaches approximately seventy-five percent (75%) of the Service Credits allocated to Customer through Customer's subscription. Esri reserves the right to suspend Customer's access to Online Services that consume Service Credits when Customer has consumed all its Service Credits. Esri will promptly restore Customer's access to its Online Services once Customer has purchased additional Service Credits.

2.5 Named User Licenses. Except as expressly set forth in this Agreement, the following terms apply to Software and Online Services for which Customer acquires Named User Licenses.

a. Named Users.

1. Named User login credentials are for designated users only and may not be shared with other individuals.

2. Customer may reassign a Named User License to another user if the former user no longer requires access to the Software or Online Services.

3. Customer may not add third parties as Named Users, other than third parties included within the definition of Named Users.

b. Value-Added Applications.

1. Customer is responsible for the development, operation, and technical support of Customer Content and Value-Added Applications.

E204 Page 5 of 25 March 5, 2020

2. Customer may not embed a Named User Credential into Value-Added Applications. Value-Added Applications that enable access to Customer's private data or content must require individual users to log in to the application(s) with their unique Named User login credentials.

3. Customer may embed an App Login Credential into Value-Added Applications that provide access by Anonymous Users to services, content, or data that has been published for shared access by Anonymous Users through the use of Sharing Tools.

4. Customer may not embed an App Login Credential into Value-Added Applications that enables access to Customer Content that is not publicly shared through the use of Sharing Tools. Value- Added Applications that enable access to Customer Content that is not publicly shared through the use of Sharing Tools must require individual users to log in to the application(s) with their unique Named User login credentials.

5. Customer may not provide a third party, other than third parties included within the definition of Named Users, with access to Software or Online Services, other than through Customer's Value- Added Application(s).

6. Customer may transfer Value-Added Applications to any third party for use in conjunction with the third party's own Software license or Online Services Subscription.

c. Anonymous Users. Anonymous Users may only access Software or Online Services through Value-

Added Applications that provide access to services, content, or data that has been published for shared access through the use of Sharing Tools.

2.6 Limited-Use Programs.

a. Trial, Evaluation, and Beta Programs. Products acquired under a trial, evaluation, or Beta program are licensed for evaluation and testing purposes only and not for commercial use. Any such use is at Customer's own risk, and the Products do not qualify for Maintenance. If Customer does not convert to a purchased license or subscription prior to the expiration of the trial, evaluation, or Beta license, Customer may lose any Customer Content and customizations made during the license term. If Customer does not wish to purchase a license or subscription, Customer should export such Customer Content before the license expires.

b. Educational Programs. Customer agrees to use Products provided under an educational program solely for educational purposes during the educational use Term. Customer shall not use Products for any Administrative Use unless Customer has acquired an Administrative Use license. "Administrative Use" means administrative activities that are not directly related to instruction or education, such as asset mapping, facilities management, demographic analysis, routing, campus safety, and accessibility analysis. Customer shall not use Products for revenue-generating or for-profit purposes.

c. Grant Programs. Customer may use Products provided under a grant program for noncommercial purposes only. Except for cost recovery of using and operating the Products, Customer shall not use Products for revenue-generating or for-profit purposes.

d. Other Esri Limited-Use Programs. If Customer acquires Products under any limited-use program not listed above, Customer's use of the Products may be subject to the terms set forth in the applicable launching page or enrollment form or as described on Esri's website in addition to the nonconflicting terms of this Agreement.

3.0 DATA

3.1 Definitions. The following definitions supplement the definitions provided in Attachment A:

a. "Business Listing Data"…