Amendment+5+-+Hexagon+Master+Agreement+Signed.pdf

Hexagon Master Terms and Conditions SI082020-MT Page 1

CONTRACT AMENDMENT 5

CONTRACT NAME AND NUMBER: TECHNOLOGY SERVICES CONTRACT

FOR COMPUTER AIDED DISPATCH AND MOBILE DATA SYSTEM, #024

This amendment 5 is made to Technology Services Contract for Computer Aided Dispatch and Mobile Data System (Contract or Master Contract), effective May 7, 2015, between the State of North Dakota, acting through its Department of Emergency Services, Division of State Radio, and through the North Dakota Highway Patrol, and Office of Management and Budget, State Procurement Office (STATE), and Intergraph Corporation by and through its Hexagon Safety & Infrastructure division, (CONTRACTOR or Hexagon).

The parties agree to the following terms and conditions within this Contract Amendment 5 and the attached Master Terms and expressly agree that these Terms and Conditions supersede all previous Terms and Conditions and will apply to all dealings with the parties presently pending and through the term of this agreement.

As to the OnCall Dispatch and Mobile Unit Migration that is the subject of the Statement of Work for Amendment 4, the Parties expressly agree that it too is an Order pursuant to these Terms and Conditions. The Parties also expressly agree as to the continued validity of its pricing (as set forth within the Statement of Work and expressed in Quote number 2020-70810, that are incorporated by reference) and the products to be provided (as expressed in its “Attachment A - Software Deliverables”, incorporated by reference).

The Parties further agree that for the initial Term of this agreement, other than those increased obligations associated with changes to the Covered Software Products subject to Maintenance Services, the cost of Maintenance Services shall not increase more than three (3) percent per year for each year of the five (5) year Term.

In consideration of the mutual obligations assumed under this Contract Amendment 5, Customer and Hexagon agree to the terms and conditions set forth herein and represent that this Contract Amendment 5 has been executed by each Party's duly authorized representative. The signatories represent that they have the authority to bind their respective organizations to this Contract Amendment 5. This Contract Amendment 5 may be executed in counterparts or in duplicate originals. Each counterpart or each duplicate shall be deemed an original copy of this Contract Amendment 5 signed by each Party for all purposes.

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MASTER TERMS AND CONDITIONS

These Master Terms and Conditions (the “Master Terms”) govern transactions and relations between the State of North Dakota, acting through its Department of Emergency Services’ Division of State Radio, and through the North Dakota Highway Patrol (“Customer”) and Intergraph Corporation through its Safety & Infrastructure division ("Hexagon") (each a “Party” and collectively the “Parties”).

In exchange for the compensation paid by the Customer under these Master Terms, Hexagon will make available to Customer certain proprietary software, including related proprietary documentation, software maintenance services, Cloud Programs, and professional services, all of which will be provided to Customer pursuant to these Master Terms and an Order. Before Hexagon will provide any Software licenses, Cloud Programs or any services (including the Services), Customer must agree to these Master Terms and to the terms of a corresponding Order. The Parties agree these Master Terms will govern each Order. To the extent that the Master Agreement purports to impose obligations, restrictions, or limitations upon Customer’s Affiliates or Users, Customer shall be responsible to Hexagon for Customer’s Affiliates’ and Users’ compliance with such terms and shall procure Customer’s Affiliates and Users compliance.

Upon the Effective Date, any previous scope of work or transaction to provide Maintenance Services or Migration to OnCall between the parties entered into pursuant to a previous agreement shall be considered as having been made pursuant to this Agreement. All Software previously provided to the Customer shall be licensed pursuant to this Agreement.

These Master Terms consist of the following:

• The General Terms and Conditions set forth below

• Exhibit A – End User License Agreement

• Exhibit B – Maintenance Terms and Conditions for Software

• Exhibit C – Sample Project Deliverable Sign-Off Form

• Exhibit D – Cloud Program Conditions

• Exhibit E – Subscription License Terms

• Exhibit F – COTS Training Program Terms

• Exhibit G – Common Terms Glossary

GENERAL TERMS AND CONDITIONS

1 Definitions. All capitalized terms not otherwise defined herein shall have the meaning set forth in Exhibit G (Common Terms Glossary).

2 Elements of an Order.

2.1 Order Composition.

2.1.1 Each Order will be comprised of Order Documents.

2.1.2 From time to time, Customer may request from Hexagon or Hexagon may provide Customer a draft Quote and/or SOW for Deliverables. Once the Parties mutually agree upon the contents of the Order Documents, as applicable, the Parties shall accept the Order Documents.

2.1.3 Upon mutual acceptance of the Order Documents, Customer will execute the Order Documents and/or issue a PO or a notice to commence work, unless otherwise specified in the Order Documents.

2.1.4 Notwithstanding the foregoing, Orders for Maintenance Services and Cloud Programs shall commence on the date specified in the Order Documents regardless of whether Customer has issued a PO or notice to commence work.

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2.2 Pricing. The following minimum elements shall be included with the Order Documents associated with the following types of Orders:

2.2.1 For a Software License Sale, a Quote identifying the Software licenses and quantities being procured and the total price for the Software License Sale.

2.2.2 For Time and Materials Project Assignments, a Quote setting forth the number of hours allocated for each grade of Hexagon resource to be utilized on the assignment and the hourly rate for each grade of Hexagon. Unless otherwise specified in the Order Documents, the Time and Materials Project Assignment shall expire and end six (6) months from the date the Order was formed between the Parties.

2.2.3 For Fixed Price Project Assignments, a Quote and SOW shall set forth the price of the work to be performed for and the Deliverables provided for that Order; provided however, that for a Fixed Price Project Assignment consisting of a COTS Training Curricula, a SOW may be omitted and pricing may be set forth solely in a Quote.

2.2.4 For Orders for Maintenance Services, a Quote identifying the Software to be maintained and the total price for the associated Maintenance Services.

2.2.5 For Cloud Program Sales, the quantity of License Keys subscribed for, the duration (beginning and end) of the period of the Customer’s subscription to the Cloud Program, the amount of Cloud Program Fees payable to Hexagon for the Cloud Program, and Cloud Services Schedule(s) associated with the ordered Cloud Applications.

2.2.6 For Subscription License Sales, a Quote identifying the name of the Subscription Licenses, the quantity of the Subscription Licenses being purchased, and the Subscription Term.

2.3 Change Control. During the course of Hexagon’s performance under an Order, either Party may request a change in the scope of the Order in writing, delivered to the other Party’s project manager. Any changes in price, schedule, or other terms must be documented either by an amendment or Change Order.

No change, as contemplated in this paragraph, shall become effective until agreed to by both Parties in a -mutually executed writing.

2.3.1 Hexagon and Customer will implement a change order control process to manage issues and changes during the life of the Agreement. A change request must be in writing to document the potential change.

2.3.2 The change will be reviewed and, if acceptable to Customer, Hexagon will submit to Customer an estimate of the charges and the anticipated changes in the delivery schedule that will result from the proposed change in the applicable SOW.

2.3.3 Hexagon will continue performing the services in accordance with the original Agreement, until the parties agree in writing on the change in the SOW.

2.3.4 Change orders that involve changes to the SOW or that result in a requirement for additional project funding will require approval by Customer.

2.3.5 Once both parties approve a change, a change order shall be issued in writing prior to implementation.

2.3.6 All change orders will be logged and tracked.

2.3.7 Change Control Process:

2.3.7.1 Complete write-up for the proposed change and submit copies to Hexagon and Customer’s Project Managers who will in turn provide to relevant parties for assessment.

2.3.7.2 Record the request in the change control log.

2.3.7.3 Investigate the impact of the proposed change and evaluate the impact of not performing the change.

2.3.7.4 Prepare the proposed change.

2.3.7.5 Retain the original in the project repository.

2.3.5.6 Hexagon and Customer agree whether the change should be performed and obtain authorization sign-off of the change request. The appropriate document is created.

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2.3.5.7(i) If the change is not accepted:

2.3.5.7(a) Hexagon’s Project Manager will discuss and document the issue with the Customer.

2.3.5.7(b) The proposed change can be modified and re-submitted or withdrawn if it is agreed to be non-essential. In this case the reasons will be document.

2.3.5.7(ii) If the change is accepted:

2.3.5.7(a) Once the change request has been approved and signed, work may begin, unless the change results in a change to the price, schedule, or both. If such is the case, work will not proceed until such time as the document is modified and signed off on by the authorized parties.

2.3.5.7(b) Hexagon’s Project Manager and Customer’s Project Manager will adapt project plans to incorporate approved changes.

2.3.5.7(c) Each change request duly authorized in writing by Customer and agreed to by Hexagon will be deemed incorporated into and part of the contract for the particular Order, governed by these Master Terms.

2.3.5.7(d) Progress on change requests will be reported at progress meetings or for those cases where those meetings do not occur, status reports to all pertinent parties will be furnished.

2.3.5.8 Both Hexagon and Customer must sign off that a change has been completed.

2.3.5.9 The log will be updated.

2.3.5.10 The log will be supplied at the progress meetings or, in those cases where those meetings do not occur, the log update information will be included in the status reports to the Customer.

2.4 Acceptance. Acceptance will occur based upon the following:

2.4.1 For Fixed Price Project Assignments, not governed by Exhibit F, acceptance shall occur when the applicable Task Acceptance Criteria has been satisfied in accordance with the Task Acceptance Process as set forth in an SOW.

2.4.2 For Time and Materials Project Assignments and Maintenance Services, the services are accepted as .performed, or in accordance with other acceptance criteria as set forth in a mutually agreed upon SOW.

2.4.3 For a Software License Sale, once the Software has been delivered or access to the Software has been provided.

2.4.4 For a Cloud Program Sale, when the License Keys are provided to Customer.

2.4.5 For a Subscription License Sale, once the applicable Subscription License(s) has been delivered or access to the Subscription License has been provided to the Customer.

3 Composition of the Master Agreement.

3.1 Components. The agreement between the Parties (herein referred to as the “Master Agreement”) consists of: (1) the Contract Amendment 5, (2) these Master Terms (including the General Terms and Conditions and all Exhibits), (3) any amendments to the Master Agreement, (4) Orders, together with any Change Orders, that may be delivered, prepared, or issued after the Effective Date, and (5) all documents, including applicable documents referenced via hyperlink, incorporated by reference in the documents identified in this Section. For certain Third Party Software, Third Party Terms will also be applicable and be considered as part of the Master Agreement.

3.2 Order of Precedence. In the event of any conflict or inconsistency among documents forming the Master Agreement, the following order of precedence shall be used to determine the resolution of the discrepancy, unless the Parties mutually agree in writing to an alternative decision:

(1) Any amendments to the Master Agreement;

(2) Contract Amendment 5;

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(3) Applicable Cloud Services Schedules and Training Program Statements;

(4) These Master Terms (excluding exhibits);

(5) Exhibits to these Master Terms; and

(6) Order Documents (exclusive of Cloud Services Schedules and Training Program Statements), as amended or modified by a change order.

All automated end user agreements (E.G., click-throughs) are specifically excluded and null and void. Clicking shall not represent acknowledgement or agreement to any terms and conditions contained in that agreement.

For only Third Party Software subject to Third Party Terms, the Third Party Terms shall have precedence in the event of a conflict between the Third Party Terms and any other terms of the Master Agreement.

4 Invoicing and Payment.

4.1 Invoices. Invoices shall be issued based upon the following:

4.1.1 For Software License Sales, Hexagon shall invoice Customer for the amount set forth in the Quote upon delivery of or access having been provided to the Software identified in the Order Documents;

4.1.2 Orders for Fixed Price Project Assignments shall be invoiced and become payable upon completion of a payment milestone identified in the SOW, or when applicable, in accordance with Exhibit F;

4.1.3 Time and Materials Project Assignments shall be billed and invoiced on a monthly basis as the hours are expended and Onsite Fees are incurred, or after all hours set forth in the Order Documents have been expended, whichever occurs first.

4.1.4 Orders for Maintenance Services shall be billed and invoiced in accordance with Exhibit B.

4.1.5 Cloud Program Sales shall be billed and invoiced in accordance with Exhibit D.

4.1.6 Orders for Subscription License Sales shall be billed and invoiced in accordance with Exhibit E.

4.1.7 Except for Time and Materials Project Assignments, Hexagon acknowledges travel expenses are covered by the contractual amount and any amendments/change orders thereto and shall not invoice Customer for travel expenses.

4.1.8 Customer will not make any advance payments for Services before performance by Hexagon under this Master Agreement. This section does not apply to Milestone payments in a mutually agreed upon SOW, Maintenance Services, Cloud Programs, or Subscription(s).

4.2 Payment. Customer shall make payment for any invoices issued by Hexagon within thirty (30) calendar days of the date the invoice was issued.

4.3 Late Payment. If Customer does not make timely payment, an interest charge of one and a half percent (1.5%) per Month (or the maximum allowed by law, whichever is less), which shall be compounded on a monthly basis, will be due on any undisputed, unpaid, and overdue amounts. To the extent the Customer is the subject of an applicable prompt pay act statute or ordinance, the Customer shall be subject to the terms set forth in that statute(s) and/or ordinance(s) in lieu of the prior sentence. If the Customer intends to dispute an invoice, Customer must do so within fifteen (15) business days of the date of the invoice.

4.4 Taxes. The purchase price is exclusive of all Federal, State, or Local taxes. Any taxes applied to this sale by a Federal, State, or Local taxing authority will be the responsibility of Customer. Such taxes do not include franchise taxes or taxes based on net income. If Customer is claiming tax-exempt status, it must submit the proper documentation satisfactory to Hexagon evidencing its tax-exempt status.

Applicable taxes may be invoiced at any time such taxes become fixed and certain.

5 Term and Termination.

5.1 Term. The Term of the Master Agreement shall begin on the Effective Date and remain in effect for a period of sixty (60) consecutive Months or until the Master Agreement is earlier terminated pursuant to the terms set forth herein or by mutual agreement of the Parties. An Order that is executed prior to the

SI082020-MT Page 7 expiration of the term of the Master Agreement shall be governed by the Master Agreement even if the Master Agreement Term expires during the performance of the Order. To the extent Customer executes an Order pursuant to later issued master terms, then this Master Agreement shall terminate upon completion of all Orders executed hereunder regardless of the amount of time remaining in the Term.

Customer reserves the right to extend the Term of this Master Agreement for one (1) additional period, not to exceed twelve months, beyond the expiration date. Customer reserves the right to renegotiate the Term of this Master Agreement. In view of the fact that it is unknown how long the products and services will be used 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 this Master Agreement including any extensions and renewals, Customer and Hexagon may renegotiate this Master Agreement upon mutual agreement of the parties.

5.2 Termination for Convenience. The Customer is entering into this Master Agreement for the purpose of carrying out the public policy of the State of North Dakota, as determined by its Governor, Legislative Assembly, Agencies, and Courts. If this Master Agreement ceases to further the public policy of the State of North Dakota, Customer, in its sole discretion, by thirty (30) days’ written notice and subject to the requirements of this Section 5, may terminate this Master Agreement in whole or in part. Additionally, except for Orders for Maintenance Services, Cloud Program Sales, and Subscription License Sales, either Party may terminate the Master Agreement or an Order in its sole discretion at any time upon providing the other Party with thirty (30) days written notice. The Coverage Period, Cloud Term, or Subscription Term, (if applicable) shall survive termination if the Master Agreement is terminated for convenience. In the event of a termination pursuant to this paragraph, Customer agrees to pay Hexagon for the Work performed and Software delivered and provided, plus the cost of any labor, equipment, or materials ordered in good faith prior to notice of termination that could not be canceled or returned, less amounts previously paid by Customer for such Work and/or Software. To the extent a Party exercises its right to terminate a specific Order, that termination shall have no effect upon the remaining Master Agreement, which, along with any other active Orders, shall remain in full force and effect. If a Party desires to terminate the Master Agreement, then the Parties shall proceed to wind down all ongoing work under the respective Orders in effect under the Master Agreement by the termination date. Each Party shall take commercially reasonable steps to bring the work to a close and to reduce its costs and expenditures.

5.3 Termination for Cause. Either Party may terminate the Master Agreement or a specific Order, as the case may be, in the event that other Party materially breaches a material term of the Master Agreement or any Order.

5.3.1 In the event a Party has materially breached an Order, the non-breaching Party may terminate the Order only after providing a sixty (60) calendar day cure period to cure such breach and the breach has not been cured, except for material breaches arising from non-payment. During the sixty (60) day cure period, the Parties shall try to determine a mutually agreeable plan to cure such breach. If such breach cannot be cured or an acceptable plan is not provided within the sixty

(60) day cure period, the non-breaching Party may, but does not have the obligation to, terminate the Order.

5.3.2 In the event a Party has materially breached the Master Agreement or multiple Orders, the non-breaching Party may terminate the Master Agreement only after providing a sixty (60) calendar day cure period to cure such breach and the breach has not been cured except for material breaches arising from non-payment. During the sixty (60) day cure period, the Parties shall try to determine a mutually agreeable plan to cure such breach. If such breach cannot be cured or an acceptable plan is not provided within the sixty (60) day cure period, the non-breaching Party may, but does not have the obligation to, terminate the Master Agreement. If the Master Agreement is terminated pursuant to this paragraph, by the termination date, Hexagon will stop all Work pursuant to any Orders arising under the Master Agreement. In the event the Master Agreement is terminated for cause, Hexagon shall be entitled to, and Customer agrees to pay Hexagon, payment for all Work performed and Software provided on all ongoing Orders up to the termination date, less amounts previously paid by Customer under the affected Orders.

5.3.3 Notwithstanding the foregoing, Hexagon may suspend its performance of or terminate any Order or the Master Agreement for cause if payment is not received within thirty (30) days following the date when payment was due. In the event an Order is suspended or terminated for cause, Hexagon shall be entitled to, and Customer agrees to pay Hexagon, payment for Work performed and Software delivered on said Order up to the suspension or termination date, less amounts

SI082020-MT Page 8 previously paid by Customer under the affected Orders. If Hexagon suspends an Order under this paragraph, then it may thereafter terminate the Order upon giving written notice to the Customer.

5.3.4 Notwithstanding the foregoing, Customer may not exercise a termination pursuant to the terms of Section 5.3 if Hexagon’s material breach of the terms and conditions of the Master Agreement or any Order thereunder is caused or partially caused by Customer’s negligence or failure to perform its obligations.

5.4 Termination for Lack of Funding or Authority. Customer, by written notice to CONTRACTOR, may terminate the whole or any part of this Contract under any of the following conditions:

5.4.1 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.

5.4.2 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 Contract or are no longer eligible for the funding proposed for payments authorized by this Contract.

5.4.3 If any license, permit, or certificate required by law or rule, or by the terms of this Contract, is for any reason denied, revoked, suspended, or not renewed.

6 IP Ownership.

Customer acknowledges Hexagon will retain ownership and title of Hexagon IP made or provided pursuant to any Order. All Software provided under the Master Agreement is licensed to Customer in accordance with Exhibit A (End User License Agreement) except as it is inconsistent with the terms set forth herein.

Third Party Software is licensed to Customer pursuant to Third Party Terms.

7 Warranties.

7.1 Software. The Software Products licensed under Exhibit A are warranted to substantially conform to the user documentation for a period of thirty (30) days from the initial installation; provided that Software Products covered by a Maintenance Contract between Customer and Hexagon shall instead be warranted and supported as stated in the Maintenance Contract.

7.2 Subsystem Warranty Coverage. For, and only for, new Subsystems procured/implemented pursuant to an Order under these Master Terms, the warranty coverage shall be set forth in the applicable SOW, which shall be in lieu of the warranty coverage set forth in Section 7.1.

7.3 Third-party Warranty Coverage. To the extent third-party products are supplied by Hexagon, those products are provided with a pass-thru-warranty from the original manufacturer, if any.

7.4 Disclaimer. Any product information Hexagon has shared with Customer during the proposal and/or contract activities to date was to provide an understanding of Hexagon’s current expected direction, roadmap, or vision and is subject to change at any time at Hexagon’s sole discretion. Hexagon specifically disclaims all representations and warranties regarding future features or functionality to be provided in any Software or Deliverable. Hexagon does not commit to developing the future features, functions, and/or products discussed in this material beyond that which is specifically committed to being provided by Hexagon pursuant to a valid Order. Customer should not factor any future features, functions, or products into its current decisions since there is no assurance that such future features, functions, or products will be developed. When and if future features, functions, or products are developed, they may be made generally available for licensing by Hexagon.

7.5 Warranty Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS ARTICLE, HEXAGON

DISCLAIMS (TO THE FULLEST EXTENT PERMITTED BY LAW) ALL WARRANTIES ON PRODUCTS

FURNISHED PURSUANT TO THE MASTER AGREEMENT, INCLUDING ALL WARRANTIES OF

MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE WARRANTIES SET FORTH

IN THIS ARTICLE 7 IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, AND,

EXCEPT AS SET FORTH IN ARTICLE TITLED “INDEMNIFICATION PROVISIONS” BELOW,

REPRESENTS THE FULL AND TOTAL WARRANTY OBLIGATION AND/OR LIABILITY OF HEXAGON.

8 LIMITATION OF LIABILITY

IN NO EVENT WILL HEXAGON BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,

PUNITIVE OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF

USE OR PRODUCTION, LOSS OF REVENUE, OR LOSS OF DATA, EVEN IF HEXAGON HAS BEEN

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ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.UNDER NO CIRCUMSTANCE WILL HEXAGON'S

LIABILITY UNDER THIS MASTER AGREEMENT EXCEED TWO TIMES (2X) THE AMOUNT THAT

HEXAGON HAS BEEN PAID BY CUSTOMER UNDER THE INDIVIDUAL ORDER UNDER WHICH THE

EVENT GIVING RISE TO THE CAUSE OF ACTION HAS OCCURRED. THE FOREGOING LIMITATION

OF LIABILITY SHALL BE ENFORCED TO THE FULLEST EXTENT ALLOWABLE UNDER NORTH

DAKOTA LAW, N.D.C.C. §32-12.2-15.

9 Indemnification Provisions.

9.1 Hexagon will defend, at its expense, a third party action, suit, or proceeding against Customer ("Claim"), and indemnify Customer from any judgments, settlements, and reasonable attorney's fees resulting therefrom, to the extent such Claim is (i) attributable to bodily injury, death, or physical damage to tangible property caused by Hexagon's negligent acts or omissions arising under the Master Agreement;

or (ii) based upon an allegation that a Software Product, Customized Software, Cloud Application, or Services Deliverable as of its delivery date under the Master Agreement, infringes a valid United States:

patent, copyright, or trademark, or misappropriates a third party's trade secret ("Infringement Claim"). The legal defense provided by Contractor to the State under this provision must be free of any conflicts of interest, even if retention of separate legal counsel for the State is necessary. Any attorney appointed to represent the State must first qualify as and be appointed by the North Dakota Attorney General as a Special Assistant Attorney General as required under N.D.C.C. §54-12-08. Hexagon also agrees to all costs, expenses, and attorneys’ fees incurred if Customer prevails in an action against Hexagon in establishing and litigating the indemnification coverage provided herein. This obligation shall continue for one (1) year after the termination of this Contract.

9.2 Hexagon's defense and indemnification obligations are conditioned upon:

9.2.1 Customer providing prompt written notice to Hexagon in writing of any Claim;

9.2.2 Hexagon having primary control of the defense of any actions and negotiations related to the defense or settlement of any Claim, understanding Hexagon may not settle a claim without Customer’s consent if such settlement assigns fault or culpability to Customer; and

9.2.3 Customer cooperating fully in the defense or settlement of any Claim.

9.3 Hexagon will have no obligation to defend Customer or to pay any resulting costs, damages, or attorneys' fees for any Infringement Claims alleging direct or contributory infringement of the Software Product, Cloud Program, or Service Deliverable (i) by the combination of or integration with a product, process, or system not supplied by Hexagon; (ii) by material alteration by anyone other than Hexagon or its subcontractors; (iii) by use after Customer has been notified of possible infringement; (iv) by use after modifications are provided to Customer; (v) by use after a return for refund as described below is ordered by Hexagon; (vi) if the creation of which was pursuant to specifications provided by Customer; or (vii) by use other than as specified in the documentation associated with the Software Product.

9.4 In connection with any Infringement Claims, Hexagon, at its own expense and option, may either

(i) obtain rights for Customer to continue using the allegedly infringing Hexagon supplied item; (ii) replace the item with a non-infringing alternative, or modify the allegedly infringing elements of the item, while maintaining substantially similar software functionality or data/informational content; or (iii) refund to Customer a prorated portion of the license fees paid by Customer for the infringing item(s); provided that proration for perpetually licensed software shall be based on a five (5)-year, straight-line depreciation basis beginning from the initial date of delivery. In the event of a prorated return, Customer will uninstall, cease all use of and return to Hexagon the infringing item(s).

9.5 In no event will the indemnification for Infringement Claims apply to any Beta Software, or sample, hot fix, royalty free, or evaluation software delivered pursuant to the Master Agreement.

9.6 This section provides the sole and exclusive remedies of Customer and Hexagon’s entire liability in the event of a Claim. Customer has no right to recover and Hexagon has no obligation to provide any other or further remedies, whether under another provision of the Master Agreement or any other legal theory or principle in connection with a Claim.

10 Insurance.

10.1 Policies and Coverage Amounts. Hexagon agrees to procure and maintain in force during the term of the Master Agreement, at its own cost, the following policies and amounts of coverage:

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10.1.1 Workers' Compensation Insurance as required state statute or regulation.

10.1.2 Commercial General Liability Insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000) each occurrence and ONE MILLION DOLLARS ($1,000,000) general aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage, and personal injury.

10.1.3 Automobile Liability Insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000) for any one occurrence, with respect to each of Hexagon's owned, hired or non-owned vehicles assigned to or used in performance of the services or work under the Master Agreement.

10.1.4 Umbrella/Excess Coverage with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000) per occurrence.

10.1.5 Any deductible or self-insured retention amount or other similar obligation under the policies shall be the sole responsibility of Hexagon.

10.1.6 This insurance policy may be in policy or policies of insurance, primary and excess, including the so-called umbrella or catastrophe form and must be placed with insurers rated “A-“ or better by A.M. Best Company, Inc., provided any excess policy follows form for coverage. Less than an “A-“ rating must be approved by the Customer.

10.1.7 The duty to defend, indemnify, and hold harmless the Customer under this Agreement shall not be limited by the insurance required in this Agreement.

10.1.8 The Customer and its agencies, officers, and employees shall be listed as additional insured in the certificate of insurance on the commercial general liability policy, including any excess policies (to the extent applicable). The Customer shall have all the benefits, rights and coverage of an additional insured under these policies.

10.1.9 The insurance required in this Agreement, through a policy or endorsement, shall include:

10.1.9.1 Waiver of Subrogation waiving any right to recovery the insurance company may have against the Customer.

10.1.9.2 Hexagon shall provide to Customer at least thirty (30) days’ notice of any cancellation or material change to the policies or endorsements, to the extent that Hexagon has knowledge of such cancellation or material change.

10.1.9.3 A provision that Hexagon’s insurance coverage shall be primary (i.e., pay first) as respects any insurance, self-insurance, or self-retention maintained by the Customer and that any insurance, self-insurance, or self-retention maintained by the Customer shall be in excess of Hexagon’s insurance and shall not contribute with it.

10.1.9.4 Cross liability/severability of interest for all policies and endorsements.

10.1.9.5 The legal defense provided to the Customer under the policy and any endorsements must be free of any conflicts of interest, even if retention of separate legal counsel for the Customer is necessary.

10.1.9.6 The insolvency or bankruptcy of Hexagon shall not release the insurer from payment under the policy, even when such insolvency or bankruptcy prevents Hexagon from meeting the retention limit under the policy.

10.1.10 Hexagon shall furnish a certificate of insurance to the Customer’s representative within twenty (20) calendar days of the execution of this Master Agreement by the second party.

All endorsements shall be provided as soon as practicable.

10.1.11 Failure to provide insurance as required in this Master Agreement is a material breach of contract entitled Customer to terminate this Master Agreement immediately.

10.2 Policy Maintenance. Hexagon shall procure and maintain, and shall cause any subcontractor of Hexagon to procure and maintain, the minimum insurance coverages listed herein. All policies shall be continuously maintained for the term of the Master Agreement and for three (3) years thereafter.

10.3 Certificate of Insurance. A Certificate of Insurance shall be completed by Hexagon’s insurance agent(s) as evidence that policies providing the required coverage amounts, conditions, and minimum limits

SI082020-MT Page 11 are in full force. The completed Certificate of Insurance shall be sent to the contact person identified in Contract Amendment 5.

10.4 Insurance Deductible. Hexagon shall be solely responsible for any deductible losses under the policies required above.

11 Security and Breach Notification.

11.1 Hexagon shall take reasonable industry action to prevent, detect, identify, report, track and respond to Security Incidents. In the event of a Security Incident, Hexagon will provide a Security Incident report to the Customer or its Affiliates via the support website or Cloud Portal (as applicable). The report shall be provided within twenty-four (24) Business Hours following Hexagon’s discovery, confirmation, and investigation of a Security Incident. If applicable, Hexagon shall make notification in accordance with N.D.C.C. § 51-30-02.

12 Dispute Resolution.

12.1 Resolution Protocol. The Parties shall exercise their best efforts to negotiate and settle promptly any dispute that may arise with respect to the Master Agreement or Order made pursuant to the Master Agreement (“Dispute”) in accordance with the provisions set forth herein. If either Party disputes any provision of the Master Agreement (the “Disputing Party”), or the interpretation thereof, or any conduct by the other Party under the Master Agreement, that Party shall bring the matter to the attention of the other Party at the earliest possible time in order to resolve the Dispute except for Disputes for non-payment. If such dispute is not promptly resolved by the employees responsible for the subject matter of the dispute, the Disputing Party shall be permitted to deliver to the non-Disputing Party contact person identified in Contract Amendment 5 a written notice of the dispute, whereupon the Parties shall endeavor in good faith to escalate the dispute to appropriate executives for each Party for resolution within fifteen (15) business days, or such longer period as to which the Parties may mutually agree.

12.2 RESERVED.

12.3 Prerequisites to Litigation. Except for disputes for non-payment, only after the Parties have endeavored to resolve the dispute through the processes outlined above may a Party commence litigation to resolve the dispute.

12.4 Injunctive Relief. Notwithstanding the foregoing, either Party may, before or during the exercise of the informal dispute resolution procedures set forth above, apply to a court identified in the section titled “Governing Law” for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests pending completion of such informal dispute resolution procedures.

13 Notices.

All notices given between the Parties shall be in writing and shall be considered properly sent by postage prepaid United States Mail or overnight carrier to the Customer and/or Hexagon representative, as applicable and identified in Contract Amendment 5, or such substitutes as may hereafter be disclosed by proper notification.

14 Force Majeure.

Neither party shall be deemed to be in default of any provision of the Master Agreement or an Order or be liable for any delay, failure in performance, or interruption of service resulting from acts of war, acts of terrorism, criminal acts, acts of God, natural disaster, fire, lightning, acts of or restriction imposed by civil or military authority, pandemics, epidemics, cyber-attack, labor disruption, civil disturbance, expropriation, embargo, lawful export restriction, or any other cause beyond its reasonable control. This section does not relieve or suspend a Party’s obligation to pay money to the other Party under the terms of the Master Agreement.

15 Place of Performance.

To the extent necessary, Customer agrees to provide appropriate work space and work place accommodations; computer equipment; software; access to relevant data, documents, plans, reports, and analyses; and necessary access to Hexagon personnel to perform work on an Order. To the extent work is performed remotely, Customer must provide VPN or secured remote connectivity (including a login and password) to all servers and workstations requiring installation/configuration by Hexagon.

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16 Amendments.

Any and all amendments to the Master Agreement shall specifically reference the fact the amendment is intended to alter these Master Terms. No Order or Change Order shall affect these Master Terms.

17 Confidential Information.

Absent a court order, the Parties agree not to disclose Confidential Information provided to it by the Disclosing Party to the maximum extent allowable under applicable law unless it first obtains the Disclosing Party’s written consent to such disclosure. Absent a court order, the Customer agrees not to disclose Confidential Information it receives from Hexagon, which the Customer determines in its sole discretion is protected from mandatory public disclosure under a specific exception to the North Dakota open records law, N.D.C.C. ch. 44-04. It is further understood and agreed that money damages may not be a sufficient remedy for any breach of this provision of the Master Agreement by the Receiving Party and the Disclosing Party may be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this provision of the Master Agreement but will be in addition to all other remedies available at law or equity.

The covenants set forth herein and the rights and obligations related thereto shall continue for a period of five (5) years from the date of disclosure.

18 Personal Data.

18.1 Unless required by an applicable Order, Customer shall not provide Hexagon with any Personal Data. Where Personal Data is provided by the Customer to Hexagon, the Customer shall act as the data controller and shall be responsible for complying with all applicable data protection laws. Hexagon shall act as the data processor in respect of such Personal Data and shall process the Personal Data in accordance with applicable data protection laws. The Customer acknowledges and agrees that Hexagon is not capable of being a data controller due to Hexagon’s inability to determine the purpose and means of the processing of Personal Data provided by Customer to Hexagon.

18.2 Where Customer is responsible for providing Personal Data on behalf of Users or Authorized Cloud Users directly to Hexagon, Customer will secure and maintain all necessary consents and make all necessary disclosures before including Personal Data in Customer Data input to, or otherwise supplied to Hexagon. In the event Customer, including all its Users, does not consent to Personal Data being processed as a result of the Master Agreement, Customer acknowledges Hexagon may be unable to provide Services, Software Products, Maintenance Services, and/or Cloud Program (or part thereof).

18.3 Hexagon will only process Customer supplied Personal Data in accordance with the Customer’s lawful instructions and to the extent and as necessarily required to provide the applicable goods and services under the Master Agreement and for no other purpose. Except as may be otherwise required by law, contract, or judicial order, after expiration or earlier termination of the Master Agreement, Hexagon will destroy all Customer-supplied Personal Data in accordance with applicable data protection laws.

18.4 If Hexagon supplies maintenance, support, or subscription services to Customer with respect to third-party products, and if the third-party supplier or proprietor of such requires Customer be party to any data processing agreement in connection therewith, and if Customer has not separately executed an instrument to satisfy such requirement, then Customer and Hexagon agree that the terms of the applicable third-party data processing agreement, as updated from time to time, found at https://www.hexagonsafetyinfrastructure.com/- /media/Legal/Hexagon/SI/Policies/DPA/DPALP/DPA_LP_08-2019.pdf, shall apply.

19 Assignment.

Neither Party shall assign, sublet, or transfer all or any portion of the Master Agreement, nor any interest in the Master Agreement, without the express written consent of the non-assigning Party, which consent may be granted or withheld in the sole discretion of the non-assigning Party. Notwithstanding the foregoing, Hexagon may assign its rights and obligations under the Master Agreement, without the approval of Customer to: (1) an Affiliate or (2) another business entity in connection with a merger, consolidation, or reorganization of Hexagon or any of its subsidiaries. If Customer is a government entity, another government entity (referred to in this paragraph as a cooperative purchaser) may, with prior written consent of Hexagon, use the Master Agreement, excluding Orders to which it is not a party, as a contract vehicle for its purchases from Hexagon; provided that in such event the term “Customer” shall refer solely to the relevant cooperative purchaser with respect to its transaction and shall not refer to the cooperative purchaser with respect to transactions not for its direct benefit. Software, services, hardware, and https://www.hexagonsafetyinfrastructure.com/-/media/Legal/Hexagon/SI/Policies/DPA/DPALP/DPA_LP_08-2019.pdf https://www.hexagonsafetyinfrastructure.com/-/media/Legal/Hexagon/SI/Policies/DPA/DPALP/DPA_LP_08-2019.pdf

SI082020-MT Page 13 maintenance will be priced and scoped upon request of the cooperative purchaser and dependent upon the scope of the intended project. To the extent this clause is exercised by any cooperative purchaser with Hexagon’s consent, Hexagon shall deal directly with the cooperative purchaser regarding the scope and pricing of the project. Cooperative purchasers shall make their own legal determination as to whether the collective purchasing permitted by this clause is consistent with laws, regulations, and other policies applicable to the cooperative purchaser; and, Customer shall have no liability with respect to obligations of any cooperative purchaser utilizing the terms of this section 19 to place Orders under the Master Agreement.

20 Export.

Hexagon IP, including any technical data related to Software, Services, Maintenance Services, or Cloud Programs is subject to the export control laws and regulations of the United States. Diversion contrary to United States law is prohibited. Hexagon IP, including any technical data related to Software, Services, Maintenance Services, or Cloud Programs shall not be exported or re-exported, directly or indirectly (including via remote access), under the following circumstances:

• To Cuba, Iran, North Korea, Syria, the Crimean region of Ukraine or any national of these countries or territories.

• To any person or entity listed on any United States government denial list, including, but not limited to, the United States Department of Commerce Denied Persons, Entities, and Unverified Lists, the United States Department of Treasury Specially Designated Nationals List, and the United States Department of State Debarred List (http://export.gov/ecr/eg_main_023148.asp).

• To any entity if Customer knows, or has reason to know, the end use is related to the design, development, production, or use of missiles, chemical, biological, or nuclear weapons, or other unsafeguarded or sensitive nuclear uses.

• To any entity if Customer knows, or has reason to know, that a reshipment contrary to United States law or regulation will take place.

Any questions regarding export or re-export of the Software should be addressed to Hexagon’s Export Compliance Department at 305 Intergraph Way, Madison, Alabama, 35758, USA or at exportcompliance@intergraph.com. If the Software Customer received is identified on the media as being ITAR-controlled, the Software has been determined to be a defense article subject to the U.S. International Traffic in Arms Regulations (“ITAR”). Export of the Software from the United States must be covered by a license issued by the Directorate of Defense Trade Controls (“DDTC”) of the U.S. Department of State or by an ITAR license exemption. The Software may not be resold, diverted, or transferred to any country or any end user, or used in any country or by any end user other than as authorized by the existing license or ITAR exemption. Subject to the terms of the EULA included herein, a Software Product may be used in other countries or by other end users if prior written approval of DDTC is obtained.

If Customer is located outside the United States, Customer is responsible for complying with any local laws in Customer’s jurisdiction which might impact Customer’s right to import, export or use the Software, and Customer represents that Customer has complied with any and all regulations or registration procedures required by applicable law related to the use and importation of the Software Products.

21 RESERVED.

22 Miscellaneous.

22.1 Authority. Each Party represents and certifies to the other Party it has the requisite legal authority to enter into and be bound by the Master Agreement and all Orders arising from the Master Agreement.

Any individual purporting to execute or accept a Quote, Contract Amendment 5, or any Order Documents governed by the Master Terms on behalf of a Party represents and warrants to the other Party that such individual has the authority to bind, and does bind, the Party on whose behalf such individual purports to execute or accept such instrument(s).

22.2 Survival. In addition to other provisions that are specifically identified as surviving termination of this Master Agreement, the rights and obligations in sections titled “IP Ownership”, “Limitation of Liability”, “Indemnification”, “Dispute Resolution”, “Confidential Information”, “Export”, and the terms of any license or access granted pursuant to the Master Agreement (including, but not limited to, Exhibit A, Exhibit D, and/or Exhibit E), shall survive and continue after expiration or termination of the Master Agreement, shall remain in effect until fulfilled, and shall apply to any permitted successors and assigns. Upon termination of the mailto:exportcompliance@hexagon.com

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Master Agreement, the provisions of the Master Agreement, including those in the preceding sentence, which by their express terms survive termination, shall remain in full force and effect.

22.3 Waiver. The waiver by either Party of any of its rights or remedies in enforcing any action or breach under the Master Agreement in a particular instance shall not be considered as a waiver of the same or different rights, remedies, or actions for breach in subsequent instances.

22.4 Severability. If any provision of the Master Agreement or an Order is void, voidable, unenforceable, or illegal in its terms, but would not be so if it were rewritten to eliminate such terms that were found to be voidable, unenforceable, or illegal and such rewrite would not affect the intent of the provision, then the provision must be rewritten to be enforceable and legal.

22.5…