HomeMy WebLinkAboutContract 58665CSC No. 58665
ADDENDUM TO L3 HARRIS OFFER 206220-2
BETWEEN
THE CITY OF FORT WORTH
AND
WESCAM, INC.
This Addendum to Wescam Inc. Offer 206220-2 ("Addendum") is entered into by and
between Wescam Inc. ("Vendor") and the City of Fort Worth ("City"), collectively the "parties",
for a purchase of licenses.
The Contract documents shall include the following:
1. The Wescam Inc. Offer 206220-2 and Terms and Conditions (Exhibit A); and
2. This Addendum as modified herein;
Notwithstanding any language to the contrary in the attached Wescam Inc. Offer 206220-
2 (the "Agreement"), the Parties hereby stipulate by evidence of execution of this Addendum below
by a representative of each party duly authorized to bind the parties hereto, that the parties hereby
agree that the provisions in this Addendum below shall be applicable to the Agreement as follows:
1. Term. The Agreement shall become effective upon the signing of the Agreement
by an Assistant City Manager of the City (the "Effective Date") and shall expire one (1) year after
the Effective Date (the Expiration Date"), unless terminated earlier in accordance with the
provisions of the Agreement or otherwise extended by the parties. The Agreement may be renewed
for three (3) one-year renewals at City's option, each a "Renewal Term." City shall provide Vendor
with written notice of its intent to renew at least thirty (30) days prior to the end of each term.
2. Termination.
a. Convenience. Either City or Vendor may terminate the Agreement at any
time and for any reason by providing the other party with 30 days written notice of
termination.
b. Breach. If either party commits a material breach of the Agreement, the non -
breaching Party must give written notice to the breaching party that describes the breach
in reasonable detail. The breaching party must cure the breach ten (10) calendar days after
receipt of notice from the non -breaching party, or other time frame as agreed to by the
parties. If the breaching party fails to cure the breach within the stated period of time, the
non -breaching party may, in its sole discretion, and without prejudice to any other right
under the Agreement, law, or equity, immediately terminate this Agreement by giving
written notice to the breaching party.
C. Fiscal Funding Out. In the event no funds or insufficient funds are
appropriated by City in any fiscal period for any payments due hereunder, City will notify
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Addendum Page 1 of 17
Vendor of such occurrence and the Agreement shall terminate on the last day of the fiscal
period for which appropriations were received without penalty or expense to the City of
any kind whatsoever, except as to the portions of the payments herein agreed upon for
which funds have been appropriated.
d. Duties and Obligations of the Parties. In the event that the Agreement is
terminated prior to the Expiration Date, City shall pay Vendor for services actually
rendered up to the effective date of termination and Vendor shall continue to provide City
with services requested by City and in accordance with the Agreement up to the effective
date of termination. Upon termination of the Agreement for any reason, Vendor shall
provide City with copies of all completed or partially completed documents prepared under
the Agreement. In the event Vendor has received access to City information or data as a
requirement to perform services hereunder, Vendor shall return all City provided data to
City in a machine readable format or other format deemed acceptable to City.
3. Attorneys' Fees, Penalties, and Liquidated Damages. To the extent the attached
Agreement requires City to pay attorneys' fees for any action contemplated or taken, or penalties
or liquidated damages in any amount, City objects to these terms and any such terms are hereby
deleted from the Agreement and shall have no force or effect.
4. Law and Venue. The Agreement and the rights and obligations of the parties hereto
shall be governed by, and construed in accordance with the laws of the United States and state of
Texas, exclusive of conflicts of laws provisions. Venue for any suit brought under the Agreement
shall be in a court of competent laws and jurisdiction in Tarrant County, Texas. To the extent the
Agreement is required to be governed by any state law other than Texas or venue in Tarrant
County, City objects to such terms and any such terms are hereby deleted from the Agreement
and shall have no force or effect.
5. Linked Terms and Conditions. If the Agreement contains a website link to terms
and conditions, the linked terms and conditions located at that website link as of the effective date
of the Agreement shall be the linked terms and conditions referred to in the Agreement. To the
extent that the linked terms and conditions conflict with any provision of either this Addendum or
the Agreement, the provisions contained within this Addendum and the Agreement shall control.
If any changes are made to the linked terms and conditions after the date of the Agreement, such
changes are hereby deleted and void. Further, if Vendor cannot clearly and sufficiently
demonstrate the exact terms and conditions as of the effective date of the Agreement, all of the
linked terms and conditions are hereby deleted and void.
6. Insurance. The City is a governmental entity under the laws of the state of Texas
and pursuant to Chapter 2259 of the Texas Government Code, entitled "Self -Insurance by
Governmental Units," is self -insured and therefore is not required to purchase insurance. To the
extent the Agreement requires City to purchase insurance, City objects to any such provision, the
parties agree that any such requirement shall be null and void and is hereby deleted from the
Agreement and shall have no force or effect. City will provide a letter of self -insured status as
requested by Vendor.
Addendum Page 2 of 17
7. Sovereign Immunity. Nothing herein constitutes a waiver of City's sovereign
immunity. To the extent the Agreement requires City to waive its rights or immunities as a
government entity; such provisions are hereby deleted and shall have no force or effect.
8. Limitation of Liability and Indemnity. To the extent the Agreement, in any way,
limits the liability of Vendor or requires City to indemnify or hold Vendor or any third party
harmless from damages of any kind or character, City objects to these terms and any such terms
are hereby deleted from the Agreement and shall have no force or effect.
9. IP Indemnification. Vendor agrees to indemnify, defend, settle, or pay, at its
own cost and expense, including the payment of attorney's fees, any claim or action against
the City for infringement of any patent, copyright, trade mark, service mark, trade secret,
or other intellectual property right arising from City's use of the Deliverable(s), or any part
thereof, in accordance with this Agreement, it being understood that this agreement to
indemnify, defend, settle or pay shall not apply if City modifies or misuses the Deliverable(s).
So long as Vendor bears the cost and expense of payment for claims or actions against the City
pursuant to this section 8, Vendor 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, City shall have the right to fully participate in any and all such
settlement, negotiations, or lawsuit as necessary to protect the City's interest, and City agrees
to cooperate with Vendor in doing so. In the event City, for whatever reason, assumes the
responsibility for payment of costs and expenses for any claim or action brought against the
City for infringement arising under this Agreement, the City 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, Vendor shall fully
participate and cooperate with the City in defense of such claim or action. City agrees to give
Vendor timely written notice of any such claim or action, with copies of all papers City may
receive relating thereto. Notwithstanding the foregoing, the City's assumption of payment of
costs or expenses shall not eliminate Vendor's duty to indemnify the City under this
Agreement. If the Deliverable(s), 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, Vendor shall, at its own expense and as City's sole remedy, either: (a)
procure for City the right to continue to use the Deliverable(s); or (b) modify the
Deliverable(s) to make them/it non -infringing, provided that such modification does not
materially adversely affect City's authorized use of the Deliverable(s); or (c) replace the
Deliverable(s) with equally suitable, compatible, and functionally equivalent non -infringing
Deliverable(s) at no additional charge to City; or (d) if none of the foregoing alternatives is
reasonably available to Vendor, terminate this Agreement, and refund all amounts paid to
Vendor by the City, subsequent to which termination City may seek any and all remedies
available to City under law. VENDOR'S OBLIGATIONS HEREUNDER SHALL BE
SECURED BY THE REQUISITE INSURANCE COVERAGE AND AMOUNTS SET
FORTH IN SECTION 10 OF THIS AGREEMENT.
10. No Debt. In compliance with Article 11 § 5 of the Texas Constitution, it is
understood and agreed that all obligations of City hereunder are subject to the availability of funds.
Addendum Page 3 of 17
If such funds are not appropriated or become unavailable, City shall have the right to terminate the
Agreement except for those portions of funds which have been appropriated prior to termination.
11. Confidential Information. City is a government entity under the laws of the State of
Texas and all documents held or maintained by City are subject to disclosure under the Texas Public
Information Act. To the extent the Agreement requires that City maintain records in violation of the
Act, City hereby objects to such provisions and such provisions are hereby deleted from the
Agreement and shall have no force or effect. In the event there is a request for information marked
Confidential or Proprietary, City shall promptly notify Vendor. It will be the responsibility of
Vendor to submit reasons objecting to disclosure. A determination on whether such reasons are
sufficient will not be decided by City, but by the Office of the Attorney General of the State of
Texas or by a court of competent jurisdiction.
12. Addendum Controlling. If any provisions of the attached Agreement, conflict with
the terms herein, are prohibited by applicable law, conflict with any applicable rule, regulation or
ordinance of City, the terms in this Addendum shall control.
13. No Boycott of Israel. If Vendor has fewer than 10 employees or the Agreement is
for less than $100,000, this section does not apply. Vendor acknowledges that in accordance with
Chapter 2270 of the Texas Government Code, City 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 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 Addendum, Vendor certifies
that Vendor's signature provides written verification to City that Vendor: (1) does not boycott
Israel; and (2) will not boycott Israel during the term of the Agreement.
14. Right to Review Vendor agrees that City shall, until the expiration of three (3) years
after final payment under the Agreement, have access to and the right to examine any directly "non-
proprietary" pertinent books, documents, papers and records of Vendor involving transactions
relating to the Agreement. Access will not be given to Cost data as this is commercial product.
Vendor agrees that City shall have access during normal working hours to all necessary Vendor
facilities and shall be provided adequate and appropriate workspace in order to
Addendum Page 4 of 17
conduct review in compliance with the provisions of this section. City shall give Vendor reasonable
advance notice of intended review.
15. Prohibition on Boycotting Energy Companies. Vendor acknowledges that in
accordance with Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg.,
R.S., S.B. 13, § 2, the City is prohibited from entering into a contract for goods or services that has
a value of $100,000 or more that is to be paid wholly or partly from public funds of the City with
a company with 10 or more full-time employees unless the contract contains a written verification
from the company that it: (1) does not boycott energy companies; and (2) will not boycott energy
companies during the term of the contract. The terms "boycott energy company" and "company"
have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code, as
added byActs 2021, 87th Leg., R.S., S.B.13, § 2. To the extent that Chapter 2274 of the Government
Code is applicable to this Agreement, by signing this Agreement, Vendor certifies that Contractor's
signature provides written verification to the City that Contractor: (1) does not boycott energy
companies; and (2) will not boycott energy companies during the term of this Agreement.
16. Prohibition on Discrimination Aizainst Firearm and Ammunition Industries.
Vendor acknowledges that except as otherwise provided by Chapter 2274 of the Texas
Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1, the City is prohibited
from entering into a contract for goods or services that has a value of $100,000 or more that is to
be paid wholly or partly from public funds of the City with a company with 10 or more full-time
employees unless the contract contains a written verification from the company that it: (1) does
not have a practice, policy, guidance, or directive that discriminates against a firearm entity or
firearm trade association; and (2) will not discriminate during the term of the contract against a
firearm entity or firearm trade association. The terms "discriminate," "firearm entity" and "firearm
trade association" have the meaning ascribed to those terms by Chapter 2274 of the Texas
Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1. To the extent that Chapter
2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Vendor
certifies that Contractor's signature provides written verification to the City that Contractor: (1)
does not have a practice, policy, guidance, or directive that discriminates against a firearm entity
or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade
association during the term of this Agreement.
(signature page follows)
Addendum Page 5 of 17
ACCEPTED AND AGREED:
CITY:
City of Fort Worth
7
By:
Name: Fernando Costa
Title: Assistant City Manager
Date: Dec 27, 2022
Approval Recommended:
By:
Robert 127, 2022 11:16 CST)
Name: Robert A. Alldredge Jr.
Title: Executive Assistant Chief
4.po4UIlIlgn
f Ol FOR. 4;
Attest:
dVo o=d
d
aaa nezpsaap
By: Jannette S. Goodall (Dec 30, 202218:36 CST)
Name: Jannette Goodall
Title: City Secretary
VENDOR:
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.
4V✓lf
Bv: Georgia Tucker (Dec 19, 2022 08:23 CST)
Name: Georgia Tucker
Title: Sr. Management Analyst
Approved as to Form and Legality:
By:
Name: Taylor Paris
Title: Assistant City Attorney
Contract Authorization:
M&C: N/A
WESCAM INC.
By:
S d
Name:
IV
Sophia Foisy
Title:
Sr. Associate, Contracts
Date:
15 December 2022
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Addendum Page 6 of 17
Exhibit A
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13 June, 2022
Fort Worth Police Department
505 W. Felix Fort Worth, TX 76115
United States of America
Attention: Scott Keenum
Lieutenant
Email: brian.keenum@fortworthtexas.gov
Wescam Inc.
L3Harris Technologies, Inc.
50 Leavitt Blvd
Waterdown, Ontario, Canada, L9H 005
Phone. 905-633-4000
www.L3Harris.com
Reference: Your Request for Quotation #206220-1, dated 13 January 2022.
Subject: L3Harris Offer 206220-2 for WESCAM Customer Service.
L3Harris provides this response for the support of WESCAM MX-10 EO/IR Sensor Systems.
Changes from previous bid:
• Revalidated.
Service Plans
L3Harris has designed a number of comprehensive support solutions to fit any level of mission
requirements. Customers can tailor the service plans to fit their needs and budget. L3Harris' solutions are
designed to increase user operational availability (Ao), minimize Repair Turn -Around Time (RTAT),
minimize administrative workload and delays and reduce total cost of ownership.
L3Harris' annual service is an all -in -one plan that is customizable to include all aspects of maintaining the
WESCAM systems, and can be customized to include spare parts, Field Service Representatives (FSRs),
and other elements required by customers to ensure their mission objectives are achieved. A single
annual fee for all services reduces the administrative workload and delays.
This offer is based on a service offering for MX-10: SN 446201233, for a period of 1 year and SN
446201683 for a period of 8 months commencing upon completion of the current service plans, followed
by 3 optional years. The service will be provided in accordance with the attached Service Plan Statement
of Work.
The equipment to be covered under the service plan will be QTY 2 MX-10 and the associated Hand
Controller Units. The pricing is based on
• A maximum 500 annual operating hours for SN 446201233,
• A maximum 333 operating hours for the 8 month period for SN 446201683 (equivalent to 500
annual operating hours).
As the systems are no longer covered under the service plan, typically they would require an evaluation
to ensure the equipment is operational. Since L3Harris has sufficient knowledge of the user's system
status (SNs 446201233 & 446201683), L3Harris will waive the requirement for the evaluation. Any
required repairs will be quoted separately and will need to be completed prior to the service plan
coverage.
Jason Montgomery will be in contact with you to further discuss your requirements and the contents of
this submission.
COMPANY CONFIDENTIAL Page 1 1-31-larris Offer 206220-2
220103
Addendum Page 7 of 17
(D L3HARRISTM
Sincerely, Y �'
Gur Sokhey
Bids & Proposals Coordinator
Wescam Inc.
A Subsidiary of 1-31-larris Technologies, Inc.
Email: Gur.SokheV(d)..L3Harris. com
A Purchase Order may be directly submitted via the following link for immediate action. Please ensure
the offer number is referenced. CSGOrders.wesbur(cD..L3Harris.com
C.C. Ken Scarboro, Sales Director, ALE Systems. Email: Ken.Scarboro@L3Harris.com Phone: 707-
477-0128
C.C. Jason Montgomery, In Service Business Manager. Email: Jason. Montgomery@L3Harris.com
Phone: (707) 236-1064
C.C. Doug Bell, In Service Account Manager. Email: Doug.Bell@L3Harris.com Phone: 707-484-8105
Attachments:
❑ Service Plan Statement of Work
WE HAVE MOVED!
As of 15' September, 2021, L3Harris / Wescam Inc. has moved to the following address:
50 Leavitt Boulevard, Waterdown, Ontario 191H 005 Canada. Please ensure all correspondence is
directed to this address
COMPANY CONFIDENTIAL Page 2 1-31-larris Offer 206220-2
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Addendum Page 8 of 17
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0Harris Offer # 206220-2
Fort Worth Police Department
MXTM-10 Service Plan
-0
This document includes data that must not be duplicated, used, or disclosed - in whole or in part - for any purpose
other than to evaluate this proposal. If, however, a contract is awarded to this offer or as a result of - or in
connection with - the submission of this data, the Purchaser will have the right to duplicate, use or disclose the
data to the extent provided in the resulting contract. This restriction does not limit the Purchaser right to use
information contained in this data if it is obtained from another source without restriction.
COMPANY CONFIDENTIAL
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Page 3
BHarris Offer 206220-2
Addendum Page 9 of 17
(D UHARRIS TM
Price Submission
Year Qly Model or Part No. Description Unit Price Total Price
OperatingSe"ice Plan _W Maximum Annual
2022 1 MX-10 WESCAM MX-10 per system commencing in 2022 - 500 hours $24,795 $24,795
> SIN 446201233
> SIP validity 19 Jan 2022 to 18 Jan 2023
2022 1 MX-10 WESCAM MX-10 per system commencing in 2022 - 333 hours $16,530 $16,530
> SN446201683
• SP validity 15 May 2022 to 18 Jan 2023
2023 Opt MX-10 WESCAM MX-10 per system commencing in 2023 - 500 hours $25,167 Option
2024 Opt MX-10 WESCAM MX-10 per system commencing in 2024 - 500 hours $25.545 Option
2025 Opt MX-10 WESCAM MX-10 per system commencing In 2025 - 500 hours $25,928 Option
Subtotal $41,325
Total Sid(excluding options):
COMPANY CONFIDENTIAL
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Page 4
BHarris Offer 206220-2
Addendum Page 10 of 17
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Purchase orders and Contracts are to be made out to Wescam Inc.
Wescam Inc., is a wholly owned subsidiary of 1-31-larris Technologies, Inc.
1. Precedence: These Proposal Specific Terms and Conditions along with the supplied Standard
Terms and Conditions (document FM1093) or other referenced Terms and Conditions take
precedence.
2. COVID-19 Advisement: L3Harris (Wescam Inc.) has developed and is submitting this proposal
during the declared public health emergency period. As this unprecedented situation continues
to evolve there potentially may be impacts to the execution of a resultant Contract to this offer.
Such impacts could affect the period of performance, pricing, deliveries, provision of services,
ability to travel related to corporate and / or governmental restrictions, etc. 1-31-larris (Wescam
Inc.) reserves the right to modify elements of this offer to reflect any known COVID-19 impact,
prior to negotiation / award. Our proposal is predicated on inclusion in any resultant Contract of
a mutually agreeable Contract modification clause to address impacts from the COVID-19
global pandemic during program execution.
3. Currency: All Prices in United States Dollars (USD).
4. Then -Year Pricing: Reflecting 2022 deliveries. Delivery year is determined by contract date
as accepted by Wescam Inc. and agreed to by the Purchaser. Future deliveries may be subject
to an annual escalation rate no greater than 3.0%.
5. Shipping Point: Please reference attached Service Plan Statement of Work
Unless explicit written instructions are supplied by the Purchaser, the method of transportation
and the route of shipment shall be at Wescam Inc.'s sole discretion. If the Purchaser delays
shipment of any items, Wescam Inc. may invoice the Purchaser for said items and hold them at
Purchaser's risk and expense, pending instructions from the Purchaser.
6. Offer Validity: Offer is valid for a period of 90 days. Prices for configured items or services
quoted as optional are only valid with initial order.
7. Pricing: Firm Fixed Pricing.
8. Terms and Conditions: T&C's per Wescam Inc. form FM1093 and supplied appendices.
9. Delivery:
Service Plan: Service Plan start date is end of the current service plan period and will continue
for 12 months. Purchaser is to provide hours of each system from the Elapsed Time Indicator at
or prior to service plan start date / purchase order placement and each service plan annual
renewal date.
Consult Wescam Inc. prior to placement of Purchase Order to confirm delivery commitments.
COMPANY CONFIDENTIAL Page 5 1-31-larris Offer 206220-2
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Addendum Page 11 of 17
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Note: The products / services covered by this proposal may be controlled for export by
Canadian Government or other applicable governments. Therefore, the actual delivery date is
contingent upon the timely receipt of End Use Certificate(s) and other export documents
required to be provided by the Purchaser in addition to the purchase order to allow Wescam
Inc. to apply for all applicable export license(s). If the required export license(s) are not
approved, or if approved, are subsequently withdrawn or terminated by the required
government authorities, then these actions shall relieve Wescam Inc. of its obligations without
liability for any damages or consequential losses. Wescam Inc. reserves the right to confirm
delivery lead times quoted if optionally quoted items are selected.
Payment Schedule:
Services: 1st Year annual service plan to be paid upon issuance of the Purchase Order.
Subsequent annual periods are due 30 days prior to the start of each applicable annual period
Payment Terms: Unless payments are scheduled with Purchase Order placement, payments
shall be due Net: 30 days, zero discount from issue date of invoice as noted in the payment
schedule above. Interest payable on overdue amounts at then -current bank rates for
commercial loans plus two percent (2%).
Payment Method: All payments are to be made by wire transfer / Electronic Funds Transfer
(EFT) (CAD, EUR, GBP or USD) or Automated Clearing House (ACH) transfer (USD only) to
Wescam Inc. Account transfer details will be found on invoices when issued.
COMPANY CONFIDENTIAL Page 6 1-31-larris Offer 206220-2
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Addendum Page 12 of 17
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i nfs proposavquorarfon is an orrer ro purchase, ano any resufrfng safe, is expressy conafrfonaf on me rerms ano
conditions set forth below, except where specifically stated otherwise within an accompanying proposal or quotation.
Any additional or different terms and conditions submitted by the Purchaser are expressly rejected by Wescam Inc.
and shall be of no effect nor in any circumstance binding upon Wescam Inc. unless specifically accepted by Wescam
Inc. in writing.
1. EFFECTIVE CONTRACT START DATE:
The effective contract start date is defined as the date when all of the following has occurred:
a) A formal purchase order is issued by the Purchaser.
b) Wescam Inc. accepts the technical and commercial content of the Purchase Order.
2. SUBCONTRACTING: Wescam Inc. may subcontract such portions of the work as it deems necessary in the
performance of this contract.
3. SALES AND SIMILAR TAXES:
The prices quoted in this proposal do not include Excise Taxes, sales or use taxes or any other tax, of any
nature, which may be imposed specifically as a result of this transaction. The amount of any tax applicable to
this transaction or the use of the equipment involved shall be paid by the Purchaser directly to the appropriate
taxing authority or to Wescam Inc. if itemized in the invoice.
4. IMPORT DUTY:
Unless otherwise specified in writing, the quoted prices do not include present or possible future import duties,
tariffs, or other similar charges levied by any country and all import formalities and import duties and costs are
the Purchaser's responsibility.
5. EXPORT CONTROLS:
If the items proposed are controlled items as defined in the multilateral Wassenaar Arrangement on Export
Controls for Conventional Arms and Dual -use Goods, they may require approval from the Canadian
Government andlor other Governments. as applicable. If requested by Wescam Inc., the Purchaser may be
required to provide an end -user certificate/end use statement with the purchase order to allow Wescam Inc. to
apply forthe export permit/license. Wescam Inc. will apply for any required permits/licenses in a timely
manner. Wescam Inc. accepts no responsibility for any delay in shipment due to delays in receipt or approval
of such export licenses/certificates. Failure of any government to issue a required export permitilicense, or the
withdrawal/termination of a required export permit/license by any government will be considered an event of
"force majeure" and shall relieve Wescam Inc. of its obligations without any liability.
6. INSURANCE:
Wescam Inc. shall maintain its commercial general liability insurance policies to protect Wescam Inc. legal
liability and workmen's compensation protection for Wescam Inc. employees. However, Wescam Inc. shall not
accept any contractual liability for indemnity.
7. OWNERSHIP OF TECHNICAL DATA, TRAINING MATERIAL AND SOFTWARE:
The specifications, drawings, manufacturing data and other information transmitted between Wescam Inc. and
the Purchaser in connection with Wescam Inc.'s proposal and any resulting contract are the property of the
originating party and are disclosed in confidence on the condition that they are not to be reproduced, copied,
disclosed to third parties, or used for any purpose detrimental to the interest of the other party, including to
reverse engineer, decompile or disassemble any Wescam Inc. products.
8. CONFIDENTIALITY:
Confidential Information shall include trade secrets, proprietary business or technical information and any non -
written information disclosed by either Party to the other if the Disclosing Party reduces such information to
writing, conspicuously identifies it as "Confidential" and sends it to the other Party within thirty (30) days of
disclosure.
COMPANY CONFIDENTIAL Page 7 BHarris Offer 206220-2
220103
Addendum Page 13 of 17
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Confidential Information received by one Party from the other party will be kept in confidence by the Receiving
Party with the same reasonable degree of care that it normally employs for the protection of its own confidential
information.
Confidential Information will not be used or disclosed by the Receiving Party, except to such of its employees
and employees of affiliates that have a strict need -to -know.
Each Party shall take any and all appropriate steps to impose the obligations of this Agreement on its
employees or employees of affiliates.
The above limitations shall not apply to any portion of the Confidential Information that:
(a) Was in the public domain at the time of, or prior to, disclosure, or
(b) Enters into the public domain other than by breach of this Agreement, or
(c) Was known by the Receiving Party prior to disclosure as evidenced by written records, or
(d) Was disclosed to the Receiving Party in good faith by a third party not in violation of any obligations
of confidentiality to the Disclosing Party, or
(e) Was independently developed by the Receiving Party as evidenced by written records, or
(f) Is disclosed to a Government in connection with a proposal or contract if such Confidential
Information is identified as information provided by the Disclosing Party and is marked with a suitable
legend to protect the Disclosing Party's proprietary interests.
9.ACCEPTANCE:
Acceptance of the hardware by the Purchaser (including transfer of title) shall occur upon the successful
conduct of Wescam Inc.'s standard factory acceptance test plan (new systems) or functional verification tests.
The Purchaser may witness the factory acceptance test on a non-interference basis upon reasonable notice
being given to Wescam Inc.
Acceptance by the Purchaser of any non -hardware deliverable requiring Purchaser approval shall be deemed
to have taken place within 15 days of completion or delivery to the Purchaser, provided that Wescam Inc. has
not been notified in writing that the deliverable has been rejected together with the reasons for the rejection.
10. DISCLAIMER OF DAMAGES:
Wescam Inc. shall not be liable for special, incidental, indirect, or consequential damages, under any
circumstances, including, but not limited to, damage or loss resulting from inability to use the equipment,
increased operating cost, loss of production, loss of anticipated profits, or special incidental, indirect or
consequential damages, whether similar or dissimilar, of any nature arising from any cause whatsoever
whether based on breach of contract (fundamental or otherwise), tort (including negligence), offenses, strict
liability, or any othertheory of law.
11. LIMITATION OF LIABILITY:
Notwithstanding any other provision of the contract, Wescam Inc. maximum liability thereunder, arising from
any cause whatsoever, whether based on breach of Contract (fundamental or otherwise), tort (including
negligence), offense, strict liability, or any other theory of law, shall not exceed the contract price. Any suit
based upon any aforementioned cause of action must be commenced within one year from the date said action
accrues.
12. TECHNICAL SPECIFICATIONS:
Unless otherwise agreed to, in writing, this proposal provides a general overview of the proposed offer for sale.
As part of its ongoing policy of product improvement, Wescam Inc. reserves the right to modify the equipment
configuration described to provide improved performance, reliability or maintainability or to substitute
components of equivalent or higher performance. Upon Purchaser's request, Wescam Inc. will provide
Purchaser with a qualification summary report identifying the standards to which its products have been
qualified. Any qualification standards that are not identified in the qualification summary report are expressly
disclaimed by Wescam Inc.
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Part numbers of spare parts may change between proposal and delivery. Alternate spare parts will have the
same fit, form or function and equivalent or higher performance. Wescam Inc. will notify the Purchaser of
superseding spare part numbers prior to delivery.
13. NONWAIVER:
If Wescam Inc. does not insist on strict compliance of the Purchaser with any of these Terms and Conditions,
or fails to exercise promptly any right occurring from any default of the Purchaser, then the foregoing shall not
impair Wescam Inc.'s rights in case of the Purchaser's default continues or in case of any subsequent default
by the Purchaser.
14. GOVERNING LAW:
The rights and obligations of Wescam Inc. and the Purchaserwith respect to the Wescam Inc. proposal and
any resulting contract shall be governed by the laws of the Province of Ontario, Canada. Any suits, claims or
actions relating to the contract shall be brought in a court of competent jurisdiction in the Province of Ontario
and the parties hereby irrevocably attorn to the exclusive jurisdiction of such courts forthe purpose of
adjudicating any such suit or action. Wescam Inc. and the Purchaser agree that the United Nations Convention
on Contracts for the International Sale of Goods does not apply.
15. EXCUSABLE DELAYS: Wescam Inc. shall not be liable to the Purchaser for any loss, damage, delay in
the work or non-performance of any contractual obligation caused a Force Majeure Event. "Force Majeure
Event" means any event or circumstance or combination of events or circumstances that: (i) is beyond the
reasonable control of the affected party, (ii) could not have been mitigated, avoided, or prevented through the
exercise of reasonable care and precautions, and (iii) materially and adversely affects the performance by such
party of all or a part of its obligations under or pursuant to this Contract. Force Majeure Events include but are
not limited to:
a. any act of war (whether declared or undeclared), invasion, armed conflict or act of foreign enemy, blockade,
embargo, revolution, rebellion, riot, insurrection, civil commotion, act or campaign of terrorism, or sabotage,
b. any government acts or omissions;
c. radioactive contamination or ionizing radiation;
d. any strike or labor dispute,
e. labor or material shortages that could not have been reasonably foreseen,
f. any Changes in Law, including changes in tax laws,
g. any Customer failure, whether through act or omission, to perform any of its obligations under the Contract;
h. any lightning, earthquake, hurricane, drought, tsunami, monsoon, tempest, flood, storm, cyclone, volcano,
mudslide, typhoon, tornado or other unusually severe weather or act of nature,
i. fire, explosion or chemical contamination;
j. any epidemic, blight, famine, quarantine, plague, or pandemic including but not limited to COVID-19;
k. any transportation accidents;
I. suspension of flight operations due to inclement weather;
m. delays of suppliers at any tier arising from unforeseeable causes beyond the control and without the fault or
negligence of both Seller and its supplier.
For the avoidance of doubt, Customer shall not be relieved of its obligation to make timely payment to Seller
under this purchase order by reason of Force Majeure Events.
The affected party shall give the other party timely notice after it becomes aware of any Force Majeure Event,
which notice shall, to the extent practicable, specify the length of the delay anticipated or occasioned by, and
additional costs, if any, incurred or anticipated to be incurred by reason of such Force Majeure
Event. Customer shall within ten (10) days following delivery of such notice (whether to or from Seller), or such
other period as may be agreed between the parties, issue a Change Order equitably adjusting the Contract
Price, Schedule and other terms and conditions of the Contract in accordance with Article [ref: Changes clause]
hereof. The affected party shall use reasonable efforts to minimize the delay and cost caused by the Force
Majeure Event, but Seller shall not be required to subcontract Work or to work additional hours unless
Customer agrees to pay all additional costs with respect thereto.
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During any period of suspension of the Work due to a Force Majeure Event, Seller shall take such reasonable
steps (in light of the nature of the Force Majeure Event) as necessary to protect and preserve the Work
completed and which will permit efficient resumption of the Work when reinstated. The cost of these necessary
protective steps shall be to the Customer's account and shall be set out in a Change Order in accordance with
Article 18. In addition, Seller and the Customer shall mutually agree upon the extent to which Seller's and its
Subcontractors' personnel, equipment and other temporary facilities (including provision for emergency
services) shall be retained on the Program, at Seller's facility and at its Subcontractors' facilities, during such
suspension in order to minimize expenses during such period, and Customer shall pay the amount agreed
upon to Seller for such expenses during the period of suspension.
Seller shall promptly resume the portion of the Work suspended due to a Force Majeure Event upon mutual
agreement among the parties that such Force Majeure Event is over and upon delivery of a written notice from
Customer to Seller authorizing reinstatement of such portion, specifying the effective date of resumption and
acknowledging the entitlement of Sellerto a Change Order pursuant to Article 18.
16. PROHIBITED USES:
The Purchaser may not, in any way:
a) Modify the product, except as permitted in the normal use of the product.
b) Reverse -engineer, disassemble, or make any attempt to copy the product.
c) Transfer the product to any person or entity in violation of any applicable Export regulations.
17. ENTIRE AGREEMENT:
This Agreement, together with ancillary agreements, contains the entire agreement between Wescam Inc. and
the Purchaser, and no provisions may be waived, modified, or altered except by writing executed by both
parties.
18. CHANGES:
The Purchaser may propose changes to the work within the general scope of the contract. Wescam Inc. shall
be under no obligation to implement any proposed change unless Wescam Inc. and the Purchaser agree in
writing to any resulting adjustment in the contract price, delivery schedule or other provisions of the contract.
19. ASSIGNMENT:
Purchaser shall not assign this contract, in whole or in part, to other than wholly -owned subsidiaries without the
prior written consent of Wescam Inc. Wescam Inc. may assign this contract in the event of a merger,
consolidation or reorganization or with a sale of all or substantially all of the assets of the business of Wescam
Inc. to which this contract relates.
20. OFFSET:
Wescam Inc. has entered into this agreement under the cognizance of L3Harris Technologies, Inc. Offset
programs. Unless otherwise stated, all Offset credits resulting from this agreement are the sole property of
L3Harris Technologies, Inc. to be applied to the Offset program of its choice.
To meet any existing and/or future offset obligation in Canada under current ITB/VP policies, an international
sales opportunity will create economic benefits for Canada. The choice to increase Wescam Inc.'s international
business and exports is a direct consequence of L3Harris Corporate's position to meet any current and future
Canadian obligation and Wescam Inc.'s ITB offset obligations in Canada.
21. GOVERNMENT INTERACTION:
Each Party agrees not to interact with the end customer, any government, political party or public international
organization, on behalf of the other Party without prior written approval. Neither Party is authorized to assume
or create any obligation, liability nor responsibility, express or implied, bill for goods, make any commitments or
representations, or otherwise act in any other manner, on behalf of or in the name of the other Party or to bind
the other Party in any manner. Both Parties acknowledge and agree that the relationship intended by this
Agreement is that of independent contractors.
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1. UPGRADES:
a) Wescam Inc. will perform a pre -upgrade evaluation / inspection of the equipment noting any repair requirements
to be conducted prior to the upgrade activity which will be separately quoted.
b) Any parts removed and replaced shall, unless agreed otherwise, become the property of Wescam Inc. for
disposition in accordance with Wescam Inc.'s standard processes.
c) Any import duties or taxes for product returned to Purchaser will be Purchaser's responsibility.
2. EXCLUSION OF WARRANTY:
The warranties provided in this section are in lieu of all other warranties, express, implied or statutory, including but
not limited to the implied warranties of merchantability of fitness for a particular purpose. Wescam Inc. specifically
denies any implied or express representation that the maintenance services or replacement parts will cause the
system to operate uninterrupted or error -free or have all defects corrected.
These warranties shall not apply to any unit or part thereof which, in the opinion of Wescam Inc., has been installed
or used improperly, damaged by accident, misuse, or negligence, or altered or repaired in such a manner as to impair
performance.
3. UPGRADE WARRANTY:
a) Wescam Inc. warrants, to the original Purchaser only, that the new installed parts and software as part of the
upgrade are free from defects in material and workmanship for a period of twelve months or 1000 hours of
operation, whichever occurs first, from the date of delivery by Wescam Inc.
b) Wescam Inc. will repair or replace (at its option) any such device that is returned FCA Incoterms 2010 to the
Wescam Inc. repair facility, with transportation charges prepaid and within the warranty period. The liability of
Wescam Inc. shall be limited to the repair or replacement of the device and shall not include installation, or any
other charge or expense incurred.
c) Wescam Inc. will pay for return freight to Purchaser's port of entry.
4. SERVICE ! SERVICE PLAN WARRANTY:
a) Wescam Inc. agrees that it is competentto perform the work hereunder and undertakes to conduct the work in a
conscientious and diligent manner comparable to that which is generally expected of a reputable company in the
same industry. Notwithstanding the above, no warranties whether express or implied by law or equity, shall
apply to the work performed by Wescam Inc. hereunder.
b) Unless agreed otherwise, Wescam Inc. may use refurbished parts in the performance of repair services. Any
parts removed and replaced shall, unless agreed otherwise, become the property of Wescam Inc.
c) Any parts removed and replaced shall, unless agreed otherwise, become the property of Wescam Inc. for
disposition in accordance with Wescam Inc.'s standard processes.
5. REPAIR WARRANTY:
a) Wescam Inc. warrants that the repair services will be free from defects in workmanship and material of the
repaired product for a period of ninety (90) days after shipment from Wescam Inc.'s factory or 250 hours of use,
whichever occurs first (the 'Warranty Period'). This warranty shall apply provided that (1) the defect becomes
apparent during the Warranty Period and Purchaser provides prompt written notice thereof to Wescam Inc., and
(2) the product is returned to Wescam Inc. within thirty (30) days after discovery of the defect.
b) Wescam Inc.'s sole responsibility under this warranty shall be to repair, replace or re -perform, at its sole
discretion, the defective work or materials at Wescam Inc.'s repair facility. Unless agreed otherwise, Wescam
Inc. may use refurbished parts in the performance of these warranty services.
c) These warranties will not apply if the product or any part thereof has been subject to:
(1) maintenance, overhaul, storage, operation or use which is improper or not in accordance with Wescam
Inc.'s instructions,
(2) alteration, modification or repair by anyone other than Wescam Inc. or its authorized representative, or
(3) any accident, misuse, neglect or foreign object damage. In addition, this warranty shall not apply if the
defect is attributable to any part not supplied by Wescam Inc. at time of repair, or any part not approved by
Wescam Inc.
d) Any parts removed and replaced shall, unless agreed otherwise, become the property of Wescam Inc. for
disposition in accordance with Wescam Inc.'s standard processes.
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