HomeMy WebLinkAboutContract 58663CSC No. 58663
FORT�W�OR�TH_
CITY OF FORT WORTH
SOLE SOURCE PURCHASE AGREEMENT
This Sole Source Purchase Agreement ("Agreement") is entered into by and between KPM
Analytics North America Corporation ("Seller") and the City of Fort Worth, ("Buyer"), a Texas
home rule municipal corporation.
The Sole Source Purchase Agreement includes the following documents which shall be construed
in the order of precedence in which they are listed:
1. This Sole Source Purchase Agreement;
2. Exhibit A:
Terms and Conditions;
3. Exhibit B:
Conflict of Interest Questionnaire.
4. Exhibit C:
Seller Contact Information
5. Exhibit D:
Seller's Sole Source Justification Letter and
6. Exhibit E:
Seller's Proposal
Exhibits A, B, C, D, and E, which are attached hereto and incorporated herein, are made a part of
this Agreement for all purposes. The Amount of this contract shall not exceed Seventy -Five
Thousand Dollars and Zero Cent ($75,000.00).
The undersigned represents and warrants that he or she has the power and authority to execute this
Agreement and bind the respective Seller. Seller and Buyer have caused this Agreement to be
executed by their duly authorized representatives to be effective as of the date signed below.
[Executed effective as of the date signed by the Assistant City Manager below.] / [ACCEPTED
AND AGREED:]
City: City of Fort Worth
By: Dana Burghdoff (Dec 29, 20 10:20 CSTKIIJ
Name: Dana Burghdoff
Title: Assistant City Manager
Date:
Vendor: KPM Analytics North America
Corporation
By:
Name: C Ross
Title: Chief Financial Officer
Date: December 27. 2022
CITY OF FORT WORTH INTERNAL ROUTING PROCESS:
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
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Approval Recommended:
ChristopheY- ffgYdei'
By: Christopher Harder (Dec 28, 202211:50 CST)
Name: Christopher Harder, P.E.
Title: Water Department Director
Approved as to Form and Legality:
Name: Jeremy Anato-Mensah
Title: Assistant City Attorney
Contract Authorization:
M&C: N/A
Contract Compliance Manager:
By signing I acknowledge that I am the person
responsible for the monitoring and administration
of this contract, including ensuring all
performance and reporting requirements.
By:
Name:
Patty J ilson
Title:
Contr t ervices Administrator
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City Secretary:
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By;
JannetteS Goodall (Dec 30, 20221830 CST)
Name:
Jannette S. Goodall
Title:
City Secretary
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Revised 3.11.20tp
Exhibit A
CITY OF FORT WORTH, TEXAS
STANDARD PURCHASING TERMS AND CONDITIONS
1.0 DEFINITION OF BUYER
The City of Fort Worth, its officers, agents, servants, authorized employees, vendors and
subcontractors who act on behalf of various City departments, bodies or agencies.
2.0 DEFINITION OF SELLER
The Vendor(s), consultant, supplier, its officers, agents, servants, employees, vendors and
subcontractors, or other provider of goods and/or services who act on behalf of the entity
under a contract with the City of Fort Worth.
3.0 TERM
This Agreement shall begin on the date signed by the Assistant City Manager below ("Effective
Date") and shall expire on December 31, 2023 ("Expiration Date"), unless terminated earlier in
accordance with this Agreement ("Initial Term"). Buyer shall have the option, in its sole discretion,
to renew this Agreement under the same terms and conditions, for up to five (5) one-year renewal
options, at Buyer's sole discretion.
4.0 PUBLIC INFORMATION
Buyer is a government entity under the laws of the State of Texas and all documents held
or maintained by Buyer are subject to disclosure under the Texas Public Information Act.
In the event there is a request for information marked Confidential or Proprietary, Buyer
shall promptly notify Seller. It will be the responsibility of Seller to submit reasons
objecting to disclosure. A determination on whether such reasons are sufficient will not be
decided by Buyer, but by the Office of the Attorney General of the State of Texas or by a
court of competent jurisdiction. The Parties agree that nothing contained within this
Agreement is considered proprietary or trade secret information and this agreement may
be released in the event that it is requested.
5.0 PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS
No officer or employee of Buyer shall have a financial interest, direct or indirect, in any
contract with Buyer or be financially interested, directly or indirectly, in the sale to Buyer
of any land, materials, supplies or services, except on behalf of Buyer as an officer or
employee. Any willful violation of this section shall constitute malfeasance in office, and
any officer or employee found guilty thereof shall thereby forfeit his office or position
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Any violation of this section with the knowledge, expressed or implied, of the person or
corporation contracting with the City Council shall render the contract invalid by the City
Manager or the City Council. (Chapter XXVII, Section 16, City of Fort Worth Charter).
6.0 ORDERS
6.1 No employees of the Buyer or its officers, agents, servants, vendors or subvendors
who act on behalf of various City departments, bodies or agencies are authorized
to place orders for goods and/or services without providing approved contract
numbers, purchase order numbers, or release numbers issued by the Buyer. The
only exceptions are Purchasing Card orders and emergencies pursuant to Texas
Local Government Code Section 252.022(a)(1), (2), or (3). In the case of
emergencies, the Buyer's Purchasing Division will place such orders.
6.2 Acceptance of an order and delivery on the part of the Seller without an approved
contract number, purchase order number, or release number issued by the Buyer
may result in rejection of delivery, return of goods at the Seller's cost and/or non-
payment.
7.0 SELLER TO PACKAGE GOODS
Seller will package goods in accordance with good commercial practice. Each shipping
container shall be clearly and permanently marked as follows: (a) Seller's name and
address: (b) Consignee's name, address and purchase order or purchase change order
number; (c) Container number and total number of containers, e.g., box 1 of 4 boxes; and
(d) Number of the container bearing the packing slip. Seller shall bear the cost of packaging
unless otherwise provided. Goods shall be suitably packed to secure lowest transportation
costs and to conform to requirements of common carriers and any applicable specifications.
Buyer's count or weight shall be final and conclusive on shipments not accompanied by
packing lists.
8.0 SHIPMENT UNDER RESERVATION PROHIBITED
Seller is not authorized to ship the goods under reservation, and no tender of a bill of lading
will operate as a tender of goods.
9.0 TITLE AND RISK OF LOSS
The title and risk of loss of the goods shall not pass to Buyer until Buyer actually receives
and takes possession of the goods at the point or points of delivery after inspection and
acceptance of the goods.
10.0 DELIVERY TERMS AND TRANSPORTATION CHARGES
Freight terms shall be F.O.B. Destination, Freight Prepaid and Allowed.
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11.0 PLACE OF DELIVERY
The place of delivery shall be set forth in the "Ship to" block of the purchase order,
purchase change order, or release order.
12.0 RIGHT OF INSPECTION
Buyer shall have the right to inspect the goods upon delivery before accepting them. Seller
shall be responsible for all charges for the return to Seller of any goods rejected as being
nonconforming under the specifications.
13.0 INVOICES
13.1 Seller shall submit separate invoices in duplicate, on each purchase order or
purchase change order after each delivery. Invoices shall indicate the purchase
order or purchase change order number. Invoices shall be itemized and
transportation charges, if any, shall be listed separately. A copy of the bill of lading
and the freight waybill, when applicable, should be attached to the invoice. Seller
shall mail or deliver invoices to Buyer's Department and address as set forth in the
block of the purchase order, purchase change order or release order entitled "Ship
to." Payment shall not be made until the above instruments have been submitted
after delivery and acceptance of the goods and/or services.
13.2 Seller shall not include Federal Excise, State or City Sales Tax in its invoices. The
Buyer shall furnish a tax exemption certificate upon Seller's request.
12.3 Payment. All payment terms shall be "Net 30 Days" unless otherwise agreed to in
writing. Before the 1st payment is due to Seller, Seller shall register for direct
deposit payments prior to providing goods and/or services using the forms posted
on the City's website".
14.0 PRICE WARRANTY
14.1 The price to be paid by Buyer shall be that contained in Seller's proposals which
Seller warrants to be no higher than Seller's current prices on orders by others for
products and services of the kind and specification covered by this agreement for
similar quantities under like conditions and methods of purchase. In the event Seller
breaches this warranty, the prices of the items shall be reduced to the prices
contained in Seller's proposals, or in the alternative upon Buyer's option, Buyer
shall have the right to cancel this contract without any liability to Seller for breach
or for Seller's actual expense. Such remedies are in addition to and not in lieu of
any other remedies which Buyer may have in law or equity.
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14.2 Seller warrants that no person or selling agency has been employed or retained to
solicit or secure this contract upon an agreement or understanding for commission,
percentage, brokerage or contingent fee, excepting employees of an established
commercial or selling agency that is maintained by Seller for the purpose of
securing business. For breach or violation of this warranty, Buyer shall have the
right, in addition to any other right or rights arising pursuant to said purchase(s), to
cancel this contract without liability and to deduct from the contract price such
commission percentage, brokerage or contingent fee, or otherwise to recover the
full amount thereof.
15.0 PRODUCT WARRANTY
Seller shall not limit or exclude any express or implied warranties and any attempt to do so
shall render this contract voidable at the option of Buyer. Seller warrants that the goods
furnished will conform to Buyer's specifications, drawings and descriptions listed in the
proposal invitation, and the sample(s) furnished by Seller, if any. In the event of a conflict
between Buyer's specifications, drawings, and descriptions, Buyer's specifications shall
govern.
16.0 SAFETY WARRANTY
Seller warrants that the product sold to Buyer shall conform to the standards promulgated
by the U.S. Department of Labor under the Occupational Safety and Health Act (OSHA)
of 1970, as amended. In the event the product does not conform to OSHA standards, Buyer
may return the product for correction or replacement at Seller's expense. In the event Seller
fails to make appropriate correction within a reasonable time, any correction made by
Buyer will be at Seller's expense. Where no correction is or can be made, Seller shall refund
all monies received for such goods within thirty (30) days after request is made by Buyer
in writing and received by Seller. Notice is considered to have been received upon hand
delivery, or otherwise in accordance with Section 29.0 of these terms and conditions.
Failure to make such refund shall constitute breach and cause this contract to terminate
immediately
17.0 SOFTWARE LICENSE TO SELLER
If this purchase is for the license of software products and/or services, and unless otherwise
agreed, Seller hereby grants to Buyer, a perpetual, irrevocable, non-exclusive,
nontransferable, royalty free license to use the software. This software is "proprietary" to
Seller, and is licensed and provided to the Buyer for its sole use for purposes under this
Agreement and any attached work orders or invoices. The Buyer may not use or share this
software without permission of the Seller; however Buyer may make copies of the software
expressly for backup purposes.
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18.0 WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY
18.1 The SELLER warrants that all Deliverables, or any part thereof, furnished
hereunder, including but not limited to: programs, documentation, software,
analyses, applications, methods, ways, and processes (in this Section each
individually referred to as a "Deliverable" and collectively as the
"Deliverables,") do not infringe upon or violate any patent, copyrights,
trademarks, service marks, trade secrets, or any intellectual property rights
or other third party proprietary rights, in the performance of services under
this Agreement.
18.2 SELLER shall be liable and responsible for any and all claims made against
the Buyer for infringement of any patent, copyright, trademark, service mark,
trade secret, or other intellectual property rights by the use of or supplying of
any Deliverable(s) in the course of performance or completion of, or in any
way connected with providing the services, or the Buyer's continued use of the
Deliverable(s) hereunder;
18.3 SELLER agrees to defend, settle, or pay, at its own cost and expense, any claim
or action against Buyer for infringement of any patent, copyright, trade marls,
trade secret, or similar property right arising from Buyer's use of the software
and/or documentation in accordance with this Agreement, it being understood
that this agreement to defend, settle or pay shall not apply if Buyer modifies
or misuses the software and/or documentation. So long as SELLER bears the
cost and expense of payment for claims or actions against Buyer pursuant to
this section, SELLER shall have the right to conduct the defense of any such
claim or action and all negotiations for its settlement or compromise and to
settle or compromise any such claim; however, Buyer shall have the right to
fully participate in any and all such settlement, negotiations, or lawsuit as
necessary to protect Buyer's interest, and Buyer agrees to cooperate with
SELLER in doing so. In the event Buyer, for whatever reason, assumes the
responsibility for payment of costs and expenses for any claim or action
brought against Buyer for infringement arising under this Agreement, Buyer
shall have the sole right to conduct the defense of any such claim or action and
all negotiations for its settlement or compromise and to settle or compromise
any such claim; however, SELLER shall fully participate and cooperate with
Buyer in defense of such claim or action. Buyer agrees to give SELLER timely
written notice of any such claim or action, with copies of all papers Buyer may
receive relating thereto. Notwithstanding the foregoing, Buyer's assumption
of payment of costs or expenses shall not eliminate SELLER's duty to
indemnify Buyer under this Agreement. If the software and/or documentation
or any part thereof is held to infringe and the use thereof is enjoined or
restrained or, if as a result of a settlement or compromise, such use is
materially adversely restricted, SELLER shall, at its own expense and as
Buyer's sole remedy, either: (a) procure for Buyer the right to continue to use
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the software and/or documentation; or (b) modify the software and/or
documentation to make it non -infringing, provided that such modification
does not materially adversely affect Buyer's authorized use of the software
and/or documentation; or (c) replace the software and/or documentation
with equally suitable, compatible, and functionally equivalent non -infringing
software and/or documentation at no additional charge to Buyer; or (d) if none
of the foregoing alternatives is reasonably available to SELLER terminate this
Agreement, and refund all amounts paid to SELLER by Buyer, subsequent to
which termination Buyer may seek any and all remedies available to Buyer
under law; and
18.4 The representations, warranties, and covenants of the parties contained in
section 13 through 17 of this Agreement will survive the termination and/or
expiration of this Agreement.
19.0 OWNERSHIP OF WORK PRODUCT
Seller agrees that any and all analyses, evaluations, reports, memoranda, letters, ideas,
processes, methods, programs, and manuals that were developed, prepared, conceived,
made or suggested by the Seller for the Buyer pursuant to a Work Order, including all such
developments as are originated or conceived during the term of the Contract and that are
completed or reduced to writing thereafter (the "Work Product") and Seller acknowledges
that such Work Product may be considered "work(s) made for hire" and will be and remain
the exclusive property of the Buyer. To the extent that the Work Product, under applicable
law, may not be considered work(s) made for hire, Seller hereby agrees that this Agreement
effectively transfers, grants, conveys, and assigns exclusively to Buyer, all rights, title and
ownership interests, including copyright, which Seller may have in any Work Product or
any tangible media embodying such Work Product, without the necessity of any further
consideration, and Buyer shall be entitled to obtain and hold in its own name, all
Intellectual Property rights in and to the Work Product. Seller for itself and on behalf of its
vendors hereby waives any property interest in such Work Product.
20.0 CANCELLATION
Buyer shall have the right to cancel this contract immediately for default on all or any part
of the undelivered portion of this order if Seller breaches any of the terms hereof, including
warranties of Seller. Such right of cancellation is in addition to and not in lieu of any other
remedies, which Buyer may have in law or equity.
21.0 TERMINATION
20.1 Written Notice. The purchase of goods under this order may be terminated in whole
or in part by Buyer, with or without cause, at any time upon the delivery to Seller
of a written "Notice of Termination" specifying the extent to which the goods to be
purchased under the order is terminated and the date upon which such termination
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becomes effective. Such right of termination is in addition to and not in lieu of any
other termination rights of Buyer as set forth herein.
20.2 Non -appropriation of Funds. In the event no funds or insufficient funds are
appropriated by Buyer in any fiscal period for any payments due hereunder, Buyer
will notify Seller of such occurrence and this Agreement shall terminate on the last
day of the fiscal period for which appropriations were received without penalty or
expense to Buyer of any kind whatsoever, except as to the portions of the payments
herein agreed upon for which funds have been appropriated.
20.3 Duties and Oblijzations of the Parties. Upon termination of this Agreement for any
reason, Seller shall only be compensated for items requested by the Buyer and
delivered prior to the effective date of termination, and Buyer shall not be liable for
any other costs, including any claims for lost profits or incidental damages. Seller
shall provide Buyer with copies of all completed or partially completed documents
prepared under this Agreement. In the event Seller has received access to Buyer
Information or data as a requirement to perform services hereunder, Seller shall
return all Buyer provided data to Buyer in a machine readable format or other
format deemed acceptable to Buyer.
22.0 ASSIGNMENT / DELEGATION
No interest, obligation or right of Seller, including the right to receive payment, under this
contract shall be assigned or delegated to another entity without the express written consent
of Buyer. Any attempted assignment or delegation of Seller shall be wholly void and totally
ineffective for all purposes unless made in conformity with this paragraph. Prior to Buyer
giving its consent, Seller agrees that Seller shall provide, at no additional cost to Buyer, all
documents, as determined by Buyer, that are reasonable and necessary to verify Seller's
legal status and transfer of rights, interests, or obligations to another entity. The documents
that may be requested include, but are not limited to, Articles of Incorporation and related
amendments, Certificate of Merger, IRS Form W-9 to verify tax identification number, etc.
Buyer reserves the right to withhold all payments to any entity other than Seller, if Seller
is not in compliance with this provision. If Seller fails to provide necessary information in
accordance with this section, Buyer shall not be liable for any penalties, fees or interest
resulting therefrom.
23.0 WAIVER
No claim or right arising out of a breach of this contract can be discharged in whole or in
part by a waiver or renunciation of the claim or right unless the waiver or renunciation is
supported by consideration in writing and is signed by the aggrieved party.
24.0 MODIFICATIONS
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This contract can be modified or rescinded only by a written agreement signed by both
parties.
25.0 THE AGREEMENT
In the absence of an otherwise negotiated contract, or unless stated otherwise, the
Agreement between Buyer and Seller shall consist of these Standard Terms and Conditions
together with any attachments and exhibits. This Agreement is intended by the parties as a
final expression of their agreement and is intended also as a complete and exclusive
statement of the terms of their agreement. No course of prior dealings between the parties
and no usage of trade shall be relevant to supplement or explain any term used in this
Agreement. Acceptance of or acquiescence in a course of performance under this
Agreement shall not be relevant to determine the meaning of this Agreement even though
the accepting or acquiescing party has knowledge of the performance and opportunity for
objection. Whenever a term defined by the Uniform Commercial Code (UCC) is used in
this Agreement, the definition contained in the UCC shall control. In the event of a conflict
between the contract documents, the order of precedence shall be these Standard Terms
and Conditions, and the Seller's Quote.
26.0 APPLICABLE LAW / VENUE
This agreement shall be governed by the Uniform Commercial Code wherever the term
"Uniform Commercial Code" or "UCC" is used. It shall be construed as meaning the
Uniform Commercial Code as adopted and amended in the State of Texas. Both parties
agree that venue for any litigation arising from this contract shall be in Fort Worth, Tarrant
County, Texas. This contract shall be governed, construed and enforced under the laws of
the State of Texas.
27.0 INDEPENDENT CONTRACTOR(S)
Seller shall operate hereunder as an independent contractor and not as an officer, agent,
servant or employee of Buyer. Seller shall have exclusive control of, and the exclusive
right to control, the details of its operations hereunder, and all persons performing same,
and shall be solely responsible for the acts and omissions of its officers, agents, employees,
vendors and subcontractors. The doctrine of respondent superior shall not apply as between
Buyer and Seller, its officers, agents, employees, vendors and subcontractors. Nothing
herein shall be construed as creating a partnership or joint enterprise between Buyer and
Seller, its officers, agents, employees, vendors and subcontractors.
28.0 LIABILITY AND INDEMNIFICATION.
27.1 LIABILITY - SELLER SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND
ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY,
INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR
CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY
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THE NEGLIGENT ACTS) OR OMISSION(S), MALFEASANCE OR INTENTIONAL
MISCONDUCT OF SELLER, ITS OFFICERS, AGENTS, SERVANTS OR
EMPLOYEES.
27.2 GENERAL INDEMNIFICATION- SELLER HEREBY COVENANTS AND AGREES
TO INDEMNIFY, HOLD HARMLESS AND DEFEND BUYER, ITS OFFICERS,
AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL
CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR
ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING
ALLEGED DAMAGE OR LOSS TO SELLER'S BUSINESS AND ANY RESULTING
LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY
AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR
OMISSIONS OR MALFEASANCE OF SELLER, ITS OFFICERS, AGENTS,
SERVANTS OR EMPLOYEES.
27.3 INTELLECTUAL PROPERTYINDEMNIFICATION— Seller agrees to defend, settle,
or pay, at its own cost and expense, any claim or action against Buyer for
infringement of any patent, copyright, trade mark, trade secret, or similar property
right arising from Buyer's use of the software and/or documentation in accordance
with this Agreement, it being understood that this agreement to defend, settle or pay
shall not apply if Buyer modifies or misuses the software and/or documentation. So
long as Seller bears the cost and expense of payment for claims or actions against
Buyer pursuant to this section, Seller shall have the right to conduct the defense of
any such claim or action and all negotiations for its settlement or compromise and to
settle or compromise any such claim; however, Buyer shall have the right to fully
participate in any and all such settlement, negotiations, or lawsuit as necessary to
protect Buyer's interest, and Buyer agrees to cooperate with Seller in doing so. In the
event Buyer, for whatever reason, assumes the responsibility for payment of costs and
expenses for any claim or action brought against Buyer for infringement arising
under this Agreement, Buyer shall have the sole right to conduct the defense of any
such claim or action and all negotiations for its settlement or compromise and to settle
or compromise any such claim; however, Seller shall fully participate and cooperate
with Buyer in defense of such claim or action. Buyer agrees to give Seller timely
written notice of any such claim or action, with copies of all papers Buyer may receive
relating thereto. Notwithstanding the foregoing, Buyer's assumption of payment of
costs or expenses shall not eliminate Seller's duty to indemnify Buyer under this
Agreement. If the software and/or documentation or any part thereof is held to
infringe and the use thereof is enjoined or restrained or, if as a result of a settlement
or compromise, such use is materially adversely restricted, Seller shall, at its own
expense and as Buyer's sole remedy, either: (a) procure for Buyer the right to
continue to use the software and/or documentation; or (b) modify the software and/or
documentation to make it non -infringing, provided that such modification does not
materially adversely affect Buyer's authorized use of the software and/or
documentation; or (c) replace the software and/or documentation with equally
suitable, compatible, and functionally equivalent non -infringing software and/or
documentation at no additional charge to Buyer; or (d) if none of the foregoing
alternatives is reasonably available to Seller terminate this Agreement, and refund all
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amounts paid to Seller by Buyer, subsequent to which termination Buyer may seek
any and all remedies available to Buyer under law.
28 SEVERABILITY
In case any one or more of the provisions contained in this agreement shall for any reason,
be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this agreement, which agreement
shall be construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
29 FISCAL FUNDING LIMITATION
In the event no funds or insufficient funds are appropriated and budgeted in any fiscal
period for payments due under this contract, then Buyer will immediately notify Seller of
such occurrence and this contract shall be terminated on the last day of the fiscal period for
which funds have been appropriated without penalty or expense to Buyer of any kind
whatsoever, except to the portions of annual payments herein agreed upon for which funds
shall have been appropriated and budgeted or are otherwise available.
30 NOTICES TO PARTIES
Notices required pursuant to the provisions of this Agreement shall be conclusively
determined to have been delivered when (1) hand -delivered to the other party, its agents,
employees, servants or representatives, (2) delivered by facsimile with electronic
confirmation of the transmission, or (3) received by the other party by United States Mail,
registered, return receipt requested, addressed as follows:
TO BUYER:
City of Fort Worth
Attn: Purchasing Manager
200 Texas Street
Fort Worth, TX 76102-6314
Facsimile: (817) 392-8654
With copy to Fort Worth City
Attorney's Office at same address
TO SELLER:
KPM Analytics North America
Corporation
Carey Ross, Chief Financial Officer
8 Technology Drive, Suite 100
Westborough, MA 01581
Facsimile: 1 (774) 399-0500
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31 NON-DISCRIMINATION
Seller, for itself, its personal representatives, assigns, subVendors and successors in
interest, as part of the consideration herein, agrees that in the performance of Seller's duties
and obligations hereunder, it shall not discriminate in the treatment or employment of any
individual or group of individuals on any basis prohibited by law. IF ANY CLAIM
ARISES FROM AN ALLEGED VIOLATION OF THIS NON-DISCRIMINATION
COVENANT BY SELLER, ITS PERSONAL REPRESENTATIVES, ASSIGNS,
SUBVENDORS OR SUCCESSORS IN INTEREST, SELLER AGREES TO
ASSUME SUCH LIABILITY AND TO INDEMNIFY AND DEFEND BUYER AND
HOLD BUYER HARMLESS FROM SUCH CLAIM.
32 IMMIGRATION NATIONALITY ACT
Seller shall verify the identity and employment eligibility of its employees who perform
work under this Agreement, including completing the Employment Eligibility Verification
Form (I-9). Upon request by Buyer, Seller shall provide Buyer with copies of all I-9 forms
and supporting eligibility documentation for each employee who performs work under this
Agreement. Seller shall adhere to all Federal and State laws as well as establish appropriate
procedures and controls so that no services will be performed by any Seller employee who
is not legally eligible to perform such services. SELLER SHALL INDEMNIFY BUYER
AND HOLD BUYER HARMLESS FROM ANY PENALTIES, LIABILITIES, OR
LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY SELLER,
SELLER'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES.
Buyer, upon written notice to Seller, shall have the right to immediately terminate this
Agreement for violations of this provision by Seller.
33 HEALTH, SAFETY, AND ENVIRONMENTAL REQUIREMENTS
Services, products, materials, and supplies provided by the Seller must meet or exceed all
applicable health, safety, and the environmental laws, requirements, and standards. In
addition, Seller agrees to obtain and pay, at its own expense, for all licenses, permits,
certificates, and inspections necessary to provide the products or to perform the services
hereunder. Seller shall indemnify Buyer from any penalties or liabilities due to violations
of this provision. Buyer shall have the right to immediately terminate this Agreement for
violations of this provision by Seller.
34 RIGHT TO AUDIT
Seller agrees that Buyer shall, until the expiration of three (3) years after final payment
under this contract, or the final conclusion of any audit commenced during the said three
years, have access to and the right to examine at reasonable times any directly pertinent
books, documents, papers and records, including, but not limited to, all electronic records,
of Seller involving transactions relating to this Agreement at no additional cost to Buyer.
Seller agrees that Buyer shall have access during normal working hours to all necessary
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Seller facilities and shall be provided adequate and appropriate work space in order to
conduct audits in compliance with the provisions of this section. Buyer shall give Seller
reasonable advance notice of intended audits. The Buyer's right to audit, as described
herein, shall survive the termination and/or expiration of this Agreement.
35 DISABILITY
In accordance with the provisions of the Americans With Disabilities Act of 1990 (ADA),
Seller warrants that it and any and all of its subcontractors will not unlawfully discriminate
on the basis of disability in the provision of services to general public, nor in the
availability, terms and/or conditions of employment for applicants for employment with,
or employees of Seller or any of its subcontractors. Seller warrants it will fully comply
with ADA's provisions and any other applicable federal, state and local laws concerning
disability and will defend, indemnify and hold Buyer harmless against any claims or
allegations asserted by third parties or subcontractors against Buyer arising out of Seller's
and/or its subcontractor's alleged failure to comply with the above -referenced laws
concerning disability discrimination in the performance of this agreement.
36 DISPUTE RESOLUTION
If either Buyer or Seller has a claim, dispute, or other matter in question for breach of duty,
obligations, services rendered or any warranty that arises under this Agreement, the parties
shall first attempt to resolve the matter through this dispute resolution process. The
disputing party shall notify the other party in writing as soon as practicable after
discovering the claim, dispute, or breach. The notice shall state the nature of the dispute
and list the party's specific reasons for such dispute. Within ten (10) business days of
receipt of the notice, both parties shall snake a good faith effort, either through email, mail,
phone conference, in person meetings, or other reasonable means to resolve any claim,
dispute, breach or other matter in question that may arise out of, or in connection with this
Agreement. If the parties fail to resolve the dispute within sixty (60) days of the date of
receipt of the notice of the dispute, then the parties may submit the matter to non -binding
mediation upon written consent of authorized representatives of both parties in accordance
with the Industry Arbitration Rules of the American Arbitration Association or other
applicable rules governing mediation then in effect. If the parties submit the dispute to non-
binding mediation and cannot resolve the dispute through mediation, then either party shall
have the right to exercise any and all remedies available under law regarding the dispute.
37 PROHIBITION ON CONTRACTING WITH COMPANIES THAT BOYCOTT
ISRAEL
If Seller has fewer than 10 employees or this Agreement is for less than $100,000, this
section does not apply. Seller acknowledges that in accordance with Chapter 2270 of the
Texas Government Code, the Buyer is prohibited from entering into a contract with a
company for goods or services unless the contract contains a written verification from the
company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term
14
Revised 3.11.20tp
of the contract. The terms "boycott Israel" and "company" shall have the meanings
ascribed to those terms in Section 808.001 of the Texas Government Code. By signing
this contract, Seller certifies that Seller's signature provides written verification to
the Buyer that Seller: (1) does not boycott Israel; and (2) will not boycott Israel during
the term of the contract.
38 INSURANCE REQUIREMENTS
38.1 Coverage and Limits
(a) Commercial General Liability:
$1,000,000 - Each Occurrence
$2,000,000 - Aggregate
(b) Automobile Liability:
$1,000,000- Each occurrence on a combined single limit basis
Coverage shall be on any vehicle used by Seller, its employees, agents,
represer TWHS� course of providing services under this Agreement.
"Any vehicle" shall be any vehicle owned, hired and non -owned.
(c) Worker's Compensation:
Statutory limits according to the Texas Workers' Compensation Act or any
other state workers' compensation laws where the work is being performed
Employers' liability
$100,000 -
Bodily Injury by accident; each accident/occurrence
$100,000 -
Bodily Injury by disease; each employee
$500,000 -
Bodily Injury by disease; policy limit
(d) Professional Liability (Errors & Omissions):
$1,000,000 - Each Claim Limit
$1,000,000 - Aggregate Limit
Professional Liability coverage may be provided through an endorsement
to the Commercial General Liability (CGL) policy, or a separate policy
specific to Professional E&O. Either is acceptable if coverage meets all
other requirements. Coverage shall be claims -made, and maintained for the
duration of the contractual agreement and for two (2) years following
completion of services provided. An annual certificate of insurance shall be
submitted to Buyer to evidence coverage.
15
Revised 3.11.20tp
38.2 General Requirements
(a) The commercial general liability and automobile liability policies
shall name Buyer as an additional insured thereon, as its interests may
appear. The term Buyer shall include its employees, officers, officials,
agents, and volunteers in respect to the contracted services.
(b) The workers' compensation policy shall include a Waiver of
Subrogation (Right of Recovery) in favor of Buyer.
(c) A minimum of Thirty (30) days' notice of cancellation or reduction
in limits of coverage shall be provided to Buyer. Ten (10) days' notice shall
be acceptable in the event of non-payment of premium. Notice shall be sent
to the Risk Manager, Buyer of Fort Worth, 200 Texas Street, Fort Worth,
Texas 76102, with copies to the Fort Worth City Attorney at the same
address.
(d) The insurers for all policies must be licensed and/or approved to do
businesogtf�e State of Texas. All insurers must have a minimum rating of
A- VII in the current A.M. Best Key Rating Guide, or have reasonably
equivalent financial strength and solvency to the satisfaction of Risk
Management. If the rating is below that required, written approval of Risk
Management is required.
(e) Any failure on the part of Buyer to request required insurance
documentation shall not constitute a waiver of the insurance requirement.
(f) Certificates of Insurance evidencing that Vendor has obtained all
required insurance shall be delivered to the Buyer prior to Vendor
proceeding with any work pursuant to this Agreement.
16
Revised 3.11.20tp
Exhibit B — CONFLICT OF INTEREST QUESTIONNAIRE
Pursuant to Chapter 176 of the Local Government Code, any person or agent of a person
who contracts or seeks to contract for the sale or purchase of property, goods, or services
with a local governmental entity (i.e. The City of Fort Worth) must disclose in the
Questionnaire Form CIQ ("Questionnaire") the person's affiliation or business relationship
that might cause a conflict of interest with the local governmental entity. By law, the
Questionnaire must be filed with the Fort Worth City Secretary no later than seven days
after the date the person begins contract discussions or negotiations with the Buyer, or
submits an application or response to a request for proposals or bids, correspondence, or
another writing related to a potential agreement with the Buyer. Updated Questionnaires
must be filed in conformance with Chapter 176.
A copy of the Questionnaire Form CIQ is enclosed with the submittal documents. The form
is also available at httn://www.ethics.state.tx.us/forms/CIQ.ndf.
If you have any questions about compliance, please consult your own legal counsel.
Compliance is the individual responsibility of each person or agent of a person who is
subject to the filing requirement. An offense under Chapter 176 is a Class C misdemeanor.
NOTE: If you are not aware of a Conflict of Interest in any business relationship that
you might have with the Buyer, state Seller name in the # 1, use N/A in each of the
areas on the form. However, a signature is required in the #4 box in all cases.
17
Revised 3.11.20tp
CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ
For vendor doing business with local governmental entity
This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Regular Session.
OFFICELISEONLY
This questionnaire is being filed in accordance with Chapter 176, Local Government Code,
Darn a .«,vr•�
by a vendorwho has a business relationship as defined by Section 176.001(1-a) with a local
governmental entity and the vendor meets requirements under Section 176.006(a).
By law this questionnaire must be filedwith the records administrator of the local governmental
entity not later than the 71h business day after the date the vendor becomes aware of facts
that require the statement to be filed. See Section 176.006(a-1), Local Government Code.
A vendor commits an offense if the vendor knowingly violates Section 176.006, Local
Government Code. An offense under this section is a misdemeanor.
f Name of vendor who has a business relationship with local governmental entity.
KPM Anal tics North America Corporation
2 Check this box if you are filing an update to a previously filed questionnaire.
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not
later than the 71h business day after the date on which you became aware that the originally filed questionnaire was
incomplete or inaccurate.)
3
Name of local government officer about whom the Information In this section Is being disclosed.
Patty Wilson
Name of Officer
This section (item 3 including subparts A, B, C, & D) must be completed for each officer with whom the vendor has an
employment or other business relationship as defined by Section 176.001(1-a), Local Government Code. Attach additional
pages to this Form CIO as necessary.
A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment
income, from the vendor?
a Yes EXI No
B. Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction of the local
government officer named in this section AND the taxable income is not received from the local governmental entity?
Yes I No
C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local
government officer serves as an officer or director, or holds an ownership interest of one percent or more?
a Yes EX] No
D. Describe each employment or business and family relationship with the local government officer named in this section.
4
December 27, 2022
Signature of >W r doing business with the governmental entity Date
18
Adopted 8/7/2015
Revised 3.11.20tp
EXHIBIT C — SELLER CONTACT INFORMATION
Seller's Name: KPM Analytics North America Corporation
Seller's Local Address: 8 Technology Drive Suite 100 Westborough, MA 01581
Phone: (774) 399-0500
Email: AR@kpmanalytics.com
Fax:
Name of persons to contact when placing an order or invoice questions:
Name/Title Collin Leckliter / Technical Sales Manager — South Central
Phone: (913) 706-2766
Email: cleckliter@kpmanalytics.com
Fax:
Name/Title Joe Johnson / Director Of Sales North America
Phone: (508) 259-4362
Email: jjohnson@kpmanalytics.com
Name/Title
Phone:
Email:
Signature
Fax:
Fax:
Collin Leckliter
Printed Name
12/16/2022
Date
19
Revised 3.11.20tp
4CK P M
ANALYTICS
To: Lacey Boles
Senior Chemist
Fort Worth Water
2600 SE Loop 820
Fort Worth TX 76140
August 15, 2022
Lacey,
EXHIBIT D
KPM Analytics is the sole provider and only authorized service agent for the Smartchem 200
Discrete Analyzer. KPM is the manufacturer of the Smartchem and the only authorized dealer of this
unit and its parts in the US for Municipal, Lab, and Industrial applications.
Joseph Johnson
US Sales Manager
JJOHNSON@KPMANALYTICS,COM
Mobile: 508-259-4362
Office: 508-473-9901
We are KPM Analytics
AMS�'i•AUiance C H dP I N V PROCESS SENSORS' sees rt cn Systems' SIGHTLINE 'Unit�l'>
1113/Cedar Street, Milford, MA 01757 USA --
EXHIBIT E
;JKPM
ANALYTICS
Quotation
Date 12/7/2022 Quote Number KPMA-015751
Customer Name Lacey Boles Quote Expiration IM12023
Customer Email lacey.boles@forlwonhtexas.gov Shipping Incoterms EXW —Ex Works
Company Name City Of Fort Worth Payment Terms Net 30 days
Shipping Address 2600 SE Loop 820 Fort Worth, TX 76140 Lead Time 4-8 Weeks
Sales Person Name Collin Leckliter
Email clecklher@kpmanalyliw.com
Country United Stales Phone +1 9137062766
Note
Item
Part #
Dascr tlo
Order Qry
Unit Price
Ext. Price
1
20-03220-00
Smanchem 200 Discrete Analyzer for Automated Chemistry. Up to 200 tests per hour. Delivered with 12 filters from
340 to 880 am, 9Installed on the wheel, 3 extra as Spare.
1
$44.629.9C
$44,620.90
Optional Accessories, Options, and Consumables below (not Included If quantity Is 0)
10-03504-00
Smanchem 200 Option: Module fordetermining NOx by Cadmium reduction (ISE ready)
0
$5,582.8
2
SVC
Annual Service Agreement (5 Years)
5
S5,900.0c
$29,500.00
3
Loyalty
5% discount for customer loyalty
1
-$2,361.0
-52,361.00
4
Trade
Trade In credit for old unit
1
-$4,000.0
-54,000.0
Sub Total
$67.768.901
Ask about our PM service contract
There Is currently a credit on rile for $12,800 from the SC450 that will be applied to this purchase. It does not show In final total.
Fret ht
I Shipping Charge
Total Invoice (USD)
567,768,9
8 Technology Drive, Westborough, MA, 01581, USA
4)1<pm
ANALYTICS
Quotation
TERMS AND CONDITIONS OF SALE
These terns and condklons, the attendant quotation or 4oknowledgement provided by KPM Analylks North America Corporation, hereinafter Soler, and all Seller documents Incorporated by reference therein, binds Seller, and the buyer,
hereinafter Buyer, and constitutes the entire agreement (Agreemant) between Buyer and Salter for the provision of services (SeMces) snd/or the ale of goods (Goods) InchAing software and firmware Incorporated therein or Included
therewith. Add Ida noI or different terms In any wrtlen communication from Buyer (such as a purchase order) are Vold. No provision of any purchase order or other business form employed by Buyer will supersede the terms and conditions
of this Agreement and any such document relating to this Agreement shag be for administrative purposes only and area Lave no legal effectt.
1. PRICES: Unless otherwise Specified by Seger, Seller's price for the Goods and/or SeMces shall remain In effect for thlry. (30) days after the date of Seter's quotation or acceptance of the order for the Goods/Services, whichever Is
delivered first, provided an unconditional, complete authorization for the Immediate manufacture and shipment of the Goods and/or provision of Services pursuant to Sellers standard order processing procedures Is received and accepted
by Selet within such ikne period. it such authorization Is not received by Seller within such thirty (30) day period, Seller shall have the right to change the price for the Goods/Semm$ to Seders Price in effect for the Goods/Services at the
time the order Is released to final manufacture. Prices for Goods do not cover stating, Installing, $is" up or malntalning Goods unless expressly stated In Sellers quoletlon. Notwithstanding the foregoing, the prke for Goods/Services
sold by Seller, but manufactured by others, shall be Seller's price In effect at the time of shipment to Buyer.
2. DELIVERY, ORDER ACCEPTANCE AND DOCUMENTATION:AII shipping dates are approximate and are based upon Sellers prompt receipt of all necessary Information from Buyer to property process the order. Unless agreed tc
advance and documented In Sellers Sales Order Acknowledgement to Buyer, Seller may ship at any point prior to the ship date provided In Seflers Sales Order Acknowledgement If Seger determines that K Is unable, for any reason, to
ship Buyers complete requirements of any Goods by the requested shipping dates. Soler may release a partial shipment to Buyer. Notwithstanding any provislons to the contrary In this or other documents related to this IransaCllon, and
regardless of how price was quoted, whether FOB, FAS,CIF or otherwise, legal fare to the Goods and risk of loss thereto shag transfer to Buyer upon delivery to the freight tamer at the shipping point. Seller shall provide Buyer with that
mm dale/doentallon which Is specifically Idendfed In the quotation. If additional copes of dam/dommenlallen or non-standard data/documentation are to be provided by the Seger, they shall be provided to Buyer at Selers price then In
effect. Data/documentation marked as confidential or proprietary may not be reproduced by Buyer or used by Buyer for any purpose ether than the purpose for which it was provided and may not be disclosed by Buyer to third parses
without the prior written permission of Seller.
3. EXCUSE OF PERFORMANCE: Seller shot not be table for delays In performance or for non-performance due to lagure" Interruption of computer or telecommunication systems, acts of God, war, dot, fire, terrorism, labor trouble,
unavailability of materials or components, explosion, accfdent, compliance with governmental requests, laws, regulations, orders or actions, or other unforeseen circumstances or onuses beyond Sellers reasonable control. In the event of
such delay, the time for performance or delivery shall be extended by period of time reasonably necessary to overcome the effect of the delay.
4, CHANGES, TERMINATION AND SUSPENSION: Buyer may terminate or suspend its order for any or el of the Goods/Semms covered by the Agreement only upon Sellers written consent or pursuant to Sellers applicable policy or
practices covering such termination or suspension. Any changes affecting the Goods or Services must be accepted by Seger and resulting adjustment to prke, schedule, or both, shall be mutually agreed In writing, Seller may cancel any
order or terminate any agreemenlwithout lability to Buyer If Buyer falls to meet the conditions specified herein.
S. LIMITED WARRANTY:Sub)oct to the limitations contained in Section S herein, Seger warrants that the licensed firmware embodied In the Goods will execute the programming instructions provided by Seller, and that the Goods
manufactured by Seger will be free from defects In materials or workmanship under normal use and care and Services wdl be performed by trained personnel using proper equipment and Instrumentation for the particular Service provl
The foregoing warranties will apply until the expiration of the applicable warranty period. Except as specified below, Goods are warranted for twelve (12) months from the date of shipment or, If applicable, Initial installebon, but In no case
greater than fifteen (15) months from the dale of shipment by Soler. Consumables, Parts and Services (except as specified below) are warranted fora period of 90 days from the date of shipment or completion of the Services. Products
purchased by Setter from a third party for resale to Buyer ('Resale Products') shag carry only the warranty extended by the original manufacturer. Buyer agrees that Seller has no Ilabllily for Resale Products beyond making a reasonable
commercial effort to orange for procurement and shipping of the Resale Products. If Buyer diseavem any warranty defects and notifies Seller thereof In writing during the applicable warranty period, Seller shall, at Its option, correct any
errors that are found by Sellem
r In the firmware or Services or repair or replace F.O.B point of manufacture that portion of the Goods of firmars found by Seller to be defective, or refund the purchase price of the defective portion or the
Goods/Serlces. All repleeements or repel. neeesslisted by Inadequate maintenance, normal wear and usage, unsuhabie power sources or environmental conditions, accident misuse, Improper Installation, modilloatfon, repair, use of
unauthorized replacement ports, storage or handling, or any other "use not the ISO of Seller are not covered by the limited warranty, and shalt be at Buyers expense. Serer shag not be obligated to pay any costs or charges Incurred by
Buyer or any other parry except ea may be agreed upon In writing In Advance by Seller. All costs of dismantling, relnstalallon and freight and the time and expenses of Sellers personnel and representatives for she travel and diagnosis
under this warranty clause shall be borne by Buyer unless accepted In writing by Seller. Goods repaired and pens replaced by Seller durng the warranty period shall be In warranty for the remainder of the original warranty period or ninety
(90) days whichever Is longer. This limited warranty Is the only warranty made by Seger and can be emended only In a writing signed by Seger. THE WARRANTIES AND REMEDIES SET FORTH ABOVE ARE EXCLUSIVE, THERE
ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR ANY OTHER MATTER WITH RESPECT TO ANY OF THE
GOODS OR SERVICES.
S. LIMITATION OF REMEDY AND LIABILITYSELLER SHALL NOT BE LIABLE FOR DAMAGES CUASED BY DELAY IN PERFORMANCE. THE REMEDIES OF BUYER SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE. IN
NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL
SELLER'S LIABILITY TO BUYER AND /OR ITS CUSTOMERS EXCEED THE PRICE TO BUYER OF THE SPECIFIC GOODS MANUFACTURED OR SERVICES PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE
OF ACTION. BUYER AGREES THAT IN NO EVENT SHALL SELLER'S LIABILITY TO BUYER ANDIOR ITS CUSTOMERS EXTEND TO INCLUDE INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. THE TERM
'CONSEQUENTIAL DAMAGES' SHALL INCLUDE, OUT NOT BE LIMITED TO, LOSS OF ANTICIPATED PROFITS, REVENUE OR USE AND COSTS INCURRED INCLUDING WITHOUT LIMITATION FOR CAPITAL, FUEL AND
POWER, AND CLAIMS OF BUYER'S CUSTOMERS.
T. TAXES: Any tax or governmental charge payable by the Seger became ofprovision of manufacture, sale or delvery ofthe Goods, or provisioof Services, may at Salters option be added to the price herein specified. The foregoing shell not
ap
ply to taxes based upon Seller's net income. Prices do not Include any Sales, use, excise, value added or similar taxes. Taxes shag be the responsibility of Buyer and Seller shall Include them on an Invokes, absent the receipt of an
appropriate exemption from Buyer.
8. TERMS OF PAYMENT: Unless otherwise agreed by Seger, and subject to the credit approval of Sellers Finance Department terms are F.O.B. shipping point, net 30 days from date of Sellers Involes In U.S. currency, except for
Applleebk mimalone payments or export shipments forwhkh Seller may requite other arrangements. Freight charges may Include shipping and handling charges, and Buyer shall pay all such charges. Irany payment owed to Seller
hereunder is not paid when due, it shag bear Interest at 1.5%per month, but shell not exceed the maximum rote permitted by tow, from the date on which g is due until It Is received. Seiler shall have the right, among other remedies, to
terminate the Agreement eni form suspend further deliveries under this and/or other agreements with Buyer In the event Buyer falls to make any payment hereunderwhen due. Buyer shall be liable for all expenses attendant to collection
of past due amounts, Including attorneys fees.
9. SOFTWARE AND FIRMWARE:Notwithstanding any other provision herein to the contrary, Sager or applicable third party ownershal retain AN rights of ownership and title in its respective firmware and software, Including all copyrights
relating to such firmware and software and all copies of such fimavare and software. Except a oU.,M,e provided herein, Buyer Is hereby granted a nonexclusive, royally free license to use any firmware and Software, and copies of
firmwore and software, Incorporated Into the Goods only In conjunction with such Goods and only at the Buyer's plant site where the Goods are fist tied. Buyers use of certain fmweire (es speelged by Seller) and all other software shall
be governed exclusively by Selers end/orthlra party owners applicable license terms.
10' BUYER SUPPLIED DATA:To the extent that Seller has relied upon any data or information suppled by Buyer to Seller (Data) inthe selection or design of the Goods and/or provision of the Services and the preparation of Sellers
quotation, and the Data Is Inadequale arinaccurate, any warranties orother provisions contained herein which are affected by such conditions shall be null and void.
11. EXPORTRMPORT: Buyer agrees to eompy with all applicable knport and export control laws, regulations, order and requirements, Including without Ilmlation those of the United States and European Union, and the jurisdictions In
which the Seiler and Buyer are established of fromwhkh gems may be supplied. Notification of destination and end user Is requited at all products scheduled for overseas shipment
12. GENERAL PROVISIONS: (a) Buyershell not assign its rights or obligations under the Agreement without Sellers prlorwriden consent Any attempted assignment without such consent shall be void. Subject to the foregoing, the
Agreement will be binding upon and Inure to the benefit ofthe parties and their respective successor and assigns, (b)Thers are no understandings, agreements or representations, express or Implied, notspeeleed In the Agreement (a)
No action regardless of fomt adsing out of transactions under the Agreement may be brought by either parry more than two (2) years after the "use of action has ammed, (it) Any modification ofthese terms and condd*ns must be set
forth In a written document signed by a duly authorized represen.ttve of Beier. (a) The Agreement Is formed and shag be construed, performed and enforced under the laws of the Commonwealth of Massachusetts, without regard to Its
choke of laws provisions. Buyer and Sellsragree thalthe exclusive propervenue forall actions arising underthe Agreement shag be only In Boston, Meuachaehs, USA (1) UNLESS OTHERWISE SPECIFICALLY PROVIDED IN
SELLER'S QUOTATION, GOODS AND SERVICES HEREUNDER ARE NOT INTENDED FOR USE IN ANY NUCLEAR OR NUCLEAR RELATED APPLICATIONS. Buyer (1) accepts Goods and Services In a"ordonce with the
restriction eel forth In the Immediately preceding sentence, (it) agmes to communicate such restriction In wrung to any and all subsequent purchasers or users and (Ili) agrees to defend, Indemnify and hold harmless Seller from any and all
claims, losses, liabilities, suits, judgments and damages, Including incidental and consequential damages, arising from the use of Goods and Services In any nuclear or nuclear related applications, whether the cause of actions be based In
tort contract orotherwi e, including allegations that the Senors IleblRy Is based on negligence or s8k1 gabllty. (g) The 1980 United Nations Convention on Contracts for the International Selo of Goods does not apply to this Agreemei
If any provision ofthe Agreement Is Invalid under any slatum of rule of law, such provision, to that extent only, shall be deemed to be omitted without affecting the voldily ofthe remainder of the Agreement (U Unless otherwise separately
expressly agreed to In wrgfng by Soler, Setter specifically objects to the application of any Federal Acquisition Regulation ('FAR') or other governmental procurement provision or clause to the Agreement p) The dghts, mmedlos and
protections afforded to Seller under this Agreement, Including but not limited to Indemnification of Seller, limitation of remedy and liabilky and limited warranty shot extend to Soler and to its affiliates, subsidiaries or related companies
performing or supplying work, services or products under this Agreement or any agreement Into which If Is Incorporated by reference. U) Seller does not agree to: (1) Indemnify Buyer, or (II) name Buyer as an additional Insured,
13. HIRING OF EMPLOYEES: Buyeragrees that during the execution of Services by Soler and fora period of twelve (12) months afterthe performance of Services, it will net hire any emp!oyee(s) of Seller and will not anti" or counsel
any such employees) to leave Selers employ. Buyer agrees that this covenant shag extend to ins agents and affiliates. In the event that an employee or Seller B hired or leaves the employ of Sellerin such circumstances, Buyer shall pay
Seller, as compensation for the cost incurred by Seller In recruiting and training the employee, the sum equivalent to six (8) months pay for each employee hired from or leaving the employmentof Seter.
14. BUYER RESPONSIBILITIES: Buyershell provide Seller reedy access to the sae where services are to be performed and adequate workspace and fachilms to perform some as provided In these terms and conditions. Buyer shall not
requite Seller or its ernp!.ysss, as a condition to ails amass or otherwise, to further agree or enter Into any agreement which wolves, releases, Indemnifies or otherwise limits or expands any rights or obligations whatsoever. Any such
agreements shah be null and void. Buyer shaft Inform Seller, Inwriting, at the time of order placement, of any known hazardous substance or condition at the age, Including, but not limited to, the presence of asbestos oresbestos
containing materials, and shah provide Sellewith any applicable Material Dots Safety Sheets regarding some. Buyer shall appoint a representative.mllerwith the site and the nature of the services to be performed by Seller to be
present at at limes that Seller personnel are at the site. Seller shall not be table for any expenses Incurred by Buyer In removing, replacing or refurbishing any Buyer equipment or any part of Buyer's building structure that restricts Seller
access, Buyer personnel shall cooperato with and provide as necessary assistance to Seller. Seller shag not be table or responsible for anywork performed by Buyer.
15. RESTRICTIONS ON RESALE: Goods are sold hereunder for Buyers use or resale to customers of Buyer Mat am not In the business of totalling the Goods. Buyer Is not authorized to appoint any distributors or rosallers of the
Goods.
8 Technology Drive, Westborough, MA, 01581, USA