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ADDENDUM TO WIMS SOFTWARE LICENSE AGREEMENT AND
TERMS & CONDITIONS BETWEEN
THE CITY OF FORT WORTH
AND
AQUATIC INFORMATICS
This Addendum to the WIMS Software License Agreement, Terms & Conditions
is entered into by and between Aquatics Informatics Vendor
City .
The Contract documents shall include the following:
1.The Aquatic Informatics WIMS Software License Agreement;
2.Aquatic Informatics Terms & Conditions; and
3.This Addendum.
Notwithstanding any language to the contrary in the attached WIMS Software License
Agreement, Terms & Conditions and its exhibits collectively referred to herein as the
parties 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 commence on May 1, 2023
shall expire no later than April 30, 2024
accordance with the provisions of this Agreement or otherwise extended by the parties. This
Agreement may be renewed for four one- year renewal periods at the City's option, each a
shall provide Vendor with written notice of its intent to renew at least
thirty (30) days prior to the end of each term.
2.Compensation. The City shall pay Vendor an amount not to exceed ninety-five
thousand, eight hundred ninety-eight dollars ($95,898.00) in accordance with the provisions of this
Agreement which is attached hereto and incorporated herein for all purposes. Vendor shall not
perform any additional services for the City not specified by this Agreement unless the City
requests and approves in writing the additional costs for such services. The City shall not be liable
for any additional expenses of Vendor not specified by this Agreement unless the City first
approves such expenses in writing. City agrees to pay all invoices of Vendor within thirty (30)
days of receipt of such invoice. Vendor may charge interest on late payments not to exceed one
percent (1%).
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Year Maintenance
cos per year
Pro Services
Additional licensing,
Configuration,
Training
Pro Services
Hourly (120
hrs X $350)
Yearly Totals
1 $23,702.00 $25,090.00 $42,000.00 $90,792.00
2 $24,887.00 $25,090.00 $42,000.00 $91,977.00
3 $26,131.00 $25,090.00 $42,000.00 $93,221.00
4 $27,437.00 $25,090.00 $42,000.00 $94,527.00
5 $28,808.00 $25,090.00 $42,000.00 $95,898.00
Total 5 yrs $130,965.00 $125,450.00 $210,000.00 $466,415.00
3. 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 the 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
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.
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4. nalties, and Liquidated Damages. To the extent the attached
Agreement requires City
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.
5. 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 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.
6. Sovereign Immunity. Nothing herein constitutes a waiver of City eign
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.
7. Limitation of Liability and Indemnity. Vendor agrees the exclusions or limits of
liability, as may be stated elsewhere in th
obligations, or (d) any other obligations that cannot be excluded or limited by applicable law. To
the extent the Agreement, in any way, 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.
8. IP Indemnification. Vendor agrees to indemnify, defend, settle, or pay,
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 the Agreement, it being understood that the 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 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 the 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
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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 the Agreement, and refund all amounts paid to
Vendor by the City, subsequent to which termination City may seek any and all remedies
SECURED BY THE REQUISITE INSURANCE COVERAGE REQUIRED BY CITY.
9. Data Breach.
means) of Personal Data; (ii) the inadvertent, unauthorized, and/or unlawful disclosure,
access, alteration, corruption, transfer, sale, rental, destruction, or use of Personal Data; or
(iii) any other act or omission that compromises or may compromise the security,
confidentiality, or integrity of Personal Data. Vendor shall maintain appropriate technical
and organizational measures for protection of the security (including protection against
unauthorized or unlawful processing of data and against accidental or unlawful destruction,
loss or alteration or damage, unauthorized disclosure of, or access to, personal identifiable
measures.
Vendor will not materially decrease the overall security of its technical and organizational
measures during the term of the agreement. Further, Vendor shall ensure that any person
it authorizes to Process Personal Data (including its staff, agents and subcontractors) is
bound by appropriate confidentiality obligations, whether contractual or statutory in nature.
Should Vendor become aware that a Data Breach has occurred, Vendor shall:
i. provide City written notice of the same without undue delay and in no event later than forty- eight (48)
hours after becoming aware of such Data Breach;
ii. provide City with information to allow it to report or inform individuals of the Data Breach, as
necessary;
iii. undertake an investigation of such Data Breach and reasonably cooperate with City, regulators
and law enforcement agencies;
prior written approval, which shall not be unreasonably withheld; and
v. take reasonable corrective action in a timely manner to assist in the investigation, mitigation
and remediation of a Data Breach, to remediate and mitigate the risk of a recurrence of such
Data Breach. All Personal Data delivered to Vendor shall be stored in the United States or
other jurisdictions approved by City in writing and shall not be transferred to any other
countries or jurisdictions without the prior written consent of City.
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.
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.
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11. Public 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. Network Access.
a. City Network Access. If Vendor, and/or any of its employees, officers,
Vendor shall execute and comply with the Network Access Agreement which is attached
hereto as and incorporated herein for all purposes.
b. Federal Law Enforcement Database Access. If Vendor, or any Vendor
Personnel, requires access to any federal law enforcement database or any federal criminal
history record information system, including but not limited to Fingerprint Identification
providing services for the administration of criminal justice as defined therein on behalf of
the City or the Fort Worth Police Department, under the Agreement, Vendor shall comply
with the Criminal Justice Information Services Security Policy and CFR Part 20, as
amended, and shall separately execute the Federal Bureau of Investigation Criminal Justice
Information Services Security Addendum. No changes, modifications, alterations, or
amendments shall be made to the Security Addendum. The document must be executed as
is, and as approved by the Texas Department of Public Safety and the United States
Attorney General.
14. Immigration Nationality Act. Vendor shall verify the identity and employment
eligibility of its employees who perform work under the Agreement, including completing the
Employment Eligibility Verification Form (I-9). Upon request by City, Vendor shall provide City
with copies of all I-9 forms and supporting eligibility documentation for each employee who
performs work under the Agreement. Vendor 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 Vendor
employee who is not legally eligible to perform such services. VENDOR SHALL INDEMNIFY
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CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR
LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY VENDOR, VENDOR
EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice
to Vendor, shall have the right to immediately terminate the Agreement for violations of this
provision by Vendor.
15. 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.
terms in Section 808.001 of the Texas Government Code. By signing this Addendum, Vendor
certifies that Vendor Vendor: (1) does not
boycott Israel; and (2) will not boycott Israel during the term of the Agreement.
16. Right to Audit. 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
pertinent books, documents, papers and records of Vendor involving transactions directly relating
to the Agreement. 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
conduct audits in compliance with the provisions of this section. City shall give Vendor reasonable
advance notice of intended audits.
17. 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
Government Code, as added by Acts 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
he City that Contractor: (1)
does not boycott energy companies; and (2) will not boycott energy companies during the term of
this Agreement.
18. Prohibition on Discrimination Against 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
Addendum Page 7 of 15
scribed 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
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.
19.
1.1.
1.1.1.
1.1.1.1.
1.1.1.2.
1.1.1.3.
1.1.2.
1.1.3. Technology Liability (Errors & Omissions)
1.1.3.1.
1.1.3.2.
The umbrella policy shall cover amounts for
any claims not covered by the primary Technology Liability policy.
1.1.3.3. Coverage shall include, but not be limited to, the following:
1.1.3.3.1. Failure to prevent unauthorized access;
1.1.3.3.2. Unauthorized disclosure of information;
1.1.3.3.3. Implantation of malicious code or computer
virus;
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1.1.3.3.4. Fraud, Dishonest or Intentional Acts with final
adjudication language;
1.1.3.3.5. Intellectual Property Infringement coverage,
specifically including coverage for intellectual property infringement
claims and for indemnification and legal defense of any claims of
intellectual property infringement, including infringement of patent,
copyright, trade mark or trade secret, brought against the City for use of
Deliverables, Software or Services provided by Vendor under this
Agreement;
1.1.3.3.6. Technology coverage may be provided through
an endorsement to the Commercial General Liability (CGL) policy, a
separate policy specific to Technology E&O, or an umbrella policy that
picks up coverage after primary coverage is exhausted. Either is
acceptable if coverage meets all other requirements. Technology coverage
shall be written to indicate that legal costs and fees are considered outside
of the policy limits and shall not erode limits of liability. Any deductible
will be the sole responsibility of the Vendor and may not exceed $50,000
without the written approval of the City. Coverage shall be claims-made,
with a retroactive or prior acts date that is on or before the effective date
of this Agreement. Coverage shall be maintained for the duration of the
contractual agreement and for two (2) years following completion of
services provided. An annual certificate of insurance, or a full copy of the
policy if requested, shall be submitted to the City to evidence coverage;
and
1.1.3.3.7.
1.2. General Insurance Requirements:
1.2.1. All applicable policies shall name the City as an additional insured
thereon, as its interests may appear. The term City shall include its employees, officers,
officials, agents, and volunteers in respect to the contracted services.
1.2.2. ation policy shall include a Waiver of Subrogation
(Right of Recovery) in favor of the City of Fort Worth.
1.2.3.
limits of coverage shall be provided to the City. be acceptable
in the event of non-payment of premium. Notice shall be sent to the Risk Manager, City
of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City
Attorney at the same address.
1.2.4. The insurers for all policies must be licensed and/or approved to do
business in the 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.
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1.2.5. Any failure on the part of the City to request required insurance
documentation shall not constitute a waiver of the insurance requirement.
1.2.6. Certificates of Insurance evidencing that the Vendor has obtained all
Division prior to execution of this Agreement.
(signature page follows)
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[Executed effective as of the date signed by the Assistant City Manager below.] / [ACCEPTED
AND AGREED:]
City:
By: ___________________________
Name: Dana Burghdoff
Title: Assistant City Manager
Date: ___________________
Vendor:
By: ___________________________
Name: Hazel Joomratty
Title: CFO, Aquatic Informatics
Date: ____________________
CITY OF FORT WORTH INTERNAL ROUTING PROCESS:
Approval Recommended:
By: ______________________________
Name: Christopher Harder
Title: Director, Water Department
Approved as to Form and Legality:
By: ______________________________
Name: Taylor Paris
Title: Assistant City Attorney
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: Homero Garza
Title: IT Manager, Water Department
City Secretary:
By: ______________________________
Name: Jannette S. Goodall
Title: City Secretary
Addendum Page 11 of 15
NETWORK ACCESS AGREEMENT
This Network Access Agreement ("Agreement") is made and entered into by and between
the City of Fort Worth ("City"), a home rule municipal corporation organized under the laws of
the State of Texas, and Aquatic Informatics, a Colorado corporation ("Vendor").
1. The Network. The City owns and operates a computing environment and network
(collectively the "Network"
water quality software, maintenance & support, professional services, and training. In order to provide
the necessary support, Vendor needs access to the Water Department network
2. Grant of Limited Access. Vendor is hereby granted a limited right of access to the
City's Network for the sole purpose of providing the Services. Such access is granted subject to
the terms and conditions forth in this Agreement and applicable provisions of the City's
Administrative Regulation D-7 (Electronic Communications Resource Use Policy), of which such
applicable provisions are hereby incorporated by reference and made a part of this Agreement for
all purposes herein and are available upon request.
3. Network Credentials. The City will provide Vendor with Network Credentials
consisting of user IDs and passwords unique to each individual requiring Network access on behalf
of the Vendor. If this access is being granted for purposes of completing services for the City
pursuant to a separate contract, then, this Agreement will expire at the completion of the contracted
services, or upon termination of the contracted services, whichever occurs first. Otherwise, access
Services are being provided in accordance with City Secretary Contract No. ________.
Services are being provided in accordance with City of Fort Worth PeopleSoft Contract
Services are being provided in accordance with the Agreement to which this Access
Agreement is attached.
No services are being provided pursuant to this Agreement.
4. Renewal. This Agreement shall renew in accordance with the term of the Contract
or PSK #. If there is no Contract or PSK #, this Agreement may be renewed annually by City, in
its sole discretion, at the end of the Expiration Date and each renewal term thereafter.
Notwithstanding the scheduled contract expiration or the status of completion of services,
Vendor shall provide the City with a current list of officers, agents, servants, employees or
representatives that require Network credentials on an annual basis. Failure to adhere to this
requirement may result in denial of access to the Network and/or termination of this Agreement.
5. Network Restrictions. Vendor officers, agents, servants, employees or
representatives may not share the City-assigned user IDs and passwords. Vendor acknowledges,
agrees and hereby gives its authorization to the City to monitor Vendor's use of the City's Network
in order to ensure Vendor's compliance with this Agreement. A breach by Vendor, its officers,
Addendum Page 12 of 15
agents, servants, employees or representatives, of this Agreement and any other written
instructions or guidelines that the City provides to Vendor pursuant to this Agreement shall be
grounds for the City immediately to deny Vendor access to the Network and Vendor's Data,
terminate the Agreement, and pursue any other remedies that the City may have under this
Agreement or at law or in equity.
6. Termination. In addition to the other rights of termination set forth herein, the City
may terminate this Agreement at any time and for any reason with or without notice, and without
penalty to the City. Upon termination of this Agreement, Vendor agrees to remove entirely any
client or communications software provided by the City from all computing equipment used and
owned by the Vendor, its officers, agents, servants, employees and/or representatives to access the
7. Information Security. Vendor agrees to make every reasonable effort in
accordance with accepted security practices to protect the Network credentials and access methods
provided by the City from unauthorized disclosure and use. Vendor agrees to notify the City
immediately upon discovery of a breach or threat of breach which could compromise the integrity
-owned equipment that contains
City-provided access software, termination or resignation of officers, agents, servants, employees
or representatives with access to City-provided Network credentials, and unauthorized use or
sharing of Network credentials.
8. LIABILITY AND INDEMNIFICATION. VENDOR SHALL BE LIABLE
AND RESPONSIBLE FOR ALL DAMAGES THAT THE CITY MAY INCUR DIRECTLY
ON ACCOUNT OF ANY BREACH OF THIS AGREEMENT BY VENDOR, ITS
OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. THE CITY, ITS OFFICERS,
AGENTS, SERVANTS AND EMPLOYEES, SHALL NOT BE LIABLE FOR ANY
DAMAGES THAT VENDORMAY INCUR AS A RESULT OF THE CITY'S
RESTRICTIONS TO OR DENIAL OF ACCESS TO VENDOR 'S DATA ON ACCOUNT
OF ANY BREACH OF THIS AGREEMENT BY VENDOR, ITS OFFICERS, AGENTS,
SERVANTS OR EMPLOYEES, OR FOR ANY REASONABLE SECURITY MEASURES
TAKEN BY THE CITY. IN ADDITION, VENDORSHALL BE LIABLE AND
RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE
AND/OR PERSONAL INJURY, INCLUDING DEATH, AND ALL CLAIMS, DEMANDS
AND JUDGMENTS THEREFOR, TO THE EXTENT CAUSED BY THE NEGLIGENT
ACT(S) OR OMISSION(S) OR INTENTIONAL MISCONDUCT OF VENDOR, ITS
OFFICERS, AGENTS, SERVANTS AND/OR EMPLOYEES. VENDOR, AT VENDOR 'S
OWN COST OR EXPENSE, HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD
HARMLESS THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND/OR EMPLOYEES
FROM AND AGAINST ANY CLAIM, LAWSUIT, DEMAND OR OTHER ACTION TO
THE EXTENT THAT THE SAME ARISES FROM THE NEGLIGENT ACT(S) OR
OMISSION(S) OR INTENTIONAL MISCONDUCT OF VENDOR, ITS OFFICERS,
AGENTS, SERVANTS OR EMPLOYEES.
9. Confidential Information. Vendor, for itself and its officers, agents, employees,
and representatives, agrees that it shall treat all information provided to it by the City as
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confidential and shall not disclose any such information to a third party without the prior written
approval of the City. Vendor further agrees that it shall store and maintain City Information in a
secure manner and shall not allow unauthorized users to access, modify, delete or otherwise
corrupt City Information in any way. Vendor shall notify the City immediately if the security or
integrity of any City information has been compromised or is believed to have been compromised.
10. Right to Audit. Vendor agrees that the City shall, during the initial term, any
renewal terms, and until the expiration of three (3) years after termination or expiration of this
contract, have access to and the right to examine at reasonable times any directly pertinent books,
data, documents, papers and records, both hard copy and electronic, of the Vendor involving
transactions relating to this Agreement. Vendor agrees that the City shall have access during
normal working hours to all necessary Vendor facilities and shall be provided adequate and
appropriate work space in order to conduct audits in compliance with the provisions of this
section. The City shall give Vendor reasonable advance notice of intended audits. Vendor further
agrees to include in all its subcontractor agreements hereunder a provision to the effect that the
subcontractor agrees that the City shall, during the initial term, any renewal terms, and until
expiration of three (3) years after termination or expiration of the subcontract, have access to and
the right to examine at reasonable times any directly pertinent books, data, documents, papers
and records, both hard copy and electronic, of such subcontractor involving transactions related
to the subcontract, and further that City shall have access during normal working hours to all
subcontractor facilities and shall be provided adequate and appropriate work space in order to
conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor
reasonable notice of intended audits.
11. Agreement Cumulative. This Agreement is cumulative of and in addition to any
written contracts, agreements, understandings or acknowledgments with the City signed by
Vendor. This Agreement and any other documents incorporated herein by reference constitute the
entire understanding and Agreement between the City and Vendor as to the matters contained
herein regarding Vendor's access to and use of the City's Network.
12. Amendments. The terms of this Agreement shall not be waived, altered, modified,
supplemented, or amended in any manner except by written instrument signed by an authorized
representative of both the City and Vendor.
13. Assignment. Vendor may not assign or in any way transfer any of its interest in
this Agreement. Any attempted assignment or transfer of all or any part hereof shall be null and
void.
14. Severability. If any provision of this Agreement is held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired.
15. Force Majeure. Each party shall exercise its best efforts to meet its respective
duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or
omission in performance due to force majeure or other causes beyond their reasonable control
(force majeure), including, but not limited to, compliance with any government law, ordinance or
Addendum Page 14 of 15
regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars,
riots, material or labor restrictions by any governmental authority, transportation problems and/or
any other similar causes.
16. Governing Law / Venue. This Agreement shall be construed in accordance with
the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought
on the basis of this Agreement, venue for such action shall lie in state courts located in Tarrant
County, Texas or the United States District Court for the Northern District of Texas, Fort Worth
Division.
17. Signature Authority. By affixing a signature below, the person signing this
Agreement hereby warrants that he/she has the legal authority to bind the respective party to the
terms and conditions in this agreement and to execute this Agreement on behalf of the respective
party, and that such binding authority has been granted by proper order, resolution, ordinance or
other authorization of the entity. The other party is fully entitled to rely on this warranty and
representation in entering into this Agreement.
[Signature Page Follows]
Addendum Page 15 of 15
Executed effective as of the date signed by the Assistant City Manager below.
FORT WORTH:
City of Fort Worth
By: ___________________________
Name: Dana Burghdoff
Title: Assistant City Manager
Date: ___________________________
Approval Recommended:
By: ______________________________
Name: Christopher Harder
Title: Director, Water Department
Attest:
By: ______________________________
Name: Jannette Goodall
Title: City Secretary
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: Homero Garza
Title: IT Manager, Water Department
Approved as to Form and Legality:
By: ______________________________
Name: Taylor C. Paris
Title: Assistant City Attorney
VENDOR:
Aquatic Informatics
By:
Name: Hazel Joomratty
Title: CFO
Date: ____________________________
Confidential -Company ProprietaryConfidential - Company Proprietary
AQUATIC INFORMATICS WIMS SOFTWARE LICENSE AGREEMENT
SCOPE
- and -
A. ThisSoftware License Agreement (the Agreement isbetween Provider and youthecustomer of Provider
seeking to license certain software in executable code form and obtain related services from Provider ("you" or
"Customer").
B. Provider is licensing certain software in executable code form including related professional services more
particularly describedin Schedule A upon the termsand conditionsset out in thisAgreement. By using
C. ThisAgreement includes thefollowingSchedules:
Schedule A - Description of Software
ScheduleB -License Term and payment terms
ScheduleC - Support and Maintenance
ScheduleD - Terms and Conditions
1. Software.
1.1 Provider grants to Customer, a license which permits Customer to use the Software in executable code format only
and in the manner as described in this Agreement. The Software is licensed, not sold. Provider, and not Customer, owns
the Software, which is protected by United States, Canadian and international copyright laws. Customer may use the
Software only in the manner set out in thisAgreement. ThisAgreement gives Customerno intellectual property rights in
the Software.
1.2 Provider will support your use of the Software and will maintain the Software in the manner set out in Schedule C and
this Agreement ("Support and Maintenance"). Such support and maintenance is provided on condition that you are
current in all payments due to Provider.
1.3 Onyour request Providermay provide optional professional services("PS") to you. SuchPS will be provided on
mutually agreed termsset out in a Schedule to thisagreement, a Quote, or a Statements of Work (alldescribedas
andmay include, forexample, Software installation, implementationand additionaltraining. Additionally:
(a) Your responsibilitiesand Provider responsibilities, project schedules,milestones,deliverables withrespect to PS
and its delivery will be set out in the SOW.
(b) Provider's PS and the SOW will be provided on the basis of assumptions and information set out in the
information you have provided to Provider. If such assumptions/information provided by you is incorrect then
you acknowledge that milestones, schedules, deliverablesor pricing of PS may requireadjustment. If required,
such adjustments will be mutually agreed in writing.
(c) Charges for PS commenced in accordance with SOW milestones or schedules are non-cancellable once
commenced. Unless thisAgreement is terminated by Subscriberfor cause, PS will be provided inaccordance
with SOW milestones or schedules and charged on the basis of those milestones and schedules even if
deliverables set out such SOW can not be delivered due to Subscriber's act, omission or delay.
AquaticInformatics-Software License Agreement 1
Aquatic Informatics, Inc
1999BroadwaySuite830
Denver,Colorado80202
Cityof FortWorth
920Fournier Street
FortWorth, Texas76102
Confidential -Company ProprietaryConfidential - Company Proprietary
1.4 Customer'sresponsibility generally are asfollows.
a) The Software is only for youruse. You may not provide the Software toother parties in any manner, includingas
a service bureau or application service provider.
b) In using the Software, Youwill adhere to all applicable laws, rules, and regulations.
c) To use the Software You must create a user account associated with a real person. You are responsible for that
user account's security, for all activities that occur under that account and for strictly monitoring who has user
account access. You willimmediately contact us if youbelieve a user account has been compromised or is being
used by unauthorized persons.
f) Youmay use the Software only in accordance with any documentationand acceptable use policies.
g) Customer maynot alter or modifythe Software in any way
1.5 You are responsible for the accuracy, quality, integrity rights to use and legalityof data processed usingthe Software.
You are responsible for ensuring you have the right to use any data, text, audio, video, images, software, lab samples,
operationalreadings, field readings, or othersimilar content ("Content") you input into the Software. More particularly it
is your responsibility to ensure the following:
a) thatYour Content is compatiblewith then-current interfacesfor theSoftware;
b) that YourContent complieswith the termsof thisAgreement, with applicable law and regulationand any
Provider policies made known to you; and
c) that You are responsible fordealing with anylegal claimsrelating to Your Content including any intellectual
property-related claims.
1.6 No other services are provided with the Software unlessmutually agreed to otherwise. Provider may modify this
Agreement at any time by providingyou at least 90 daysadvance notice. The modified termswill become effective on
the terms as notified. By continuing to use the Software after the effective date of any Agreement modifications, you
agree to be bound by the modified terms. If you do not agree to such modifications, you may terminate this
Agreement without penalty to either party.
2. Fees and Payment
2.1. Feescharged for the Software license ("LicenseFees") and forthe Support and Maintenance("SMA Fees") are set
out in Schedule B. All such fees are payable on a net 30 days basis without setoff or counterclaim, and without any
deduction or withholding. Provider will notify you if there are any fees charged for new options applicable to the
Software or if there are fee increases. Overdue invoices will accrue interest at the rate of 1.5% of the outstanding
balance per month
3. Consequences of breach
3.1 Providermay terminate this Agreement and your license to use the Software if youbreach the Agreement or use the
Software in a way that: (i) poses a security risk to Provider or any third party, (ii) may adversely impact the Software,
Provider or a third party's operations, (iii) may subject Provider or any third party to liability, or (iv) may be fraudulent; or
(v) breachesapplicable law or regulation. Provider will give Customer written notice of such breach. If such breach is not
corrected in 30 days Provider may terminate this Agreement.
4. Term; Termination
4.1. The term of this Agreement pertaining to the Software license commences on the Effective Date and is for the
lengthof time stated in Schedule B ("License Term"). If not stated in ScheduleB the License Term will be for a perpetual
term. The term of this Agreement pertaining to Support and Maintenance commences on the Effective Date and is for
the length of time stated in Schedule B ("SMA Term"). If not stated in Schedule B the SMA Term will be for a one year
term and will automatically renew for successive yearly periods unless a party notifies the other in writing not less than
thirty (30) days prior to expiration of intent to not renew.
4.2 Additionally, thisAgreement shall terminate in each of thefollowing events:
a) Either party may terminate this Agreement ifthe other becomesinsolvent orbankrupt or makesan assignment
for the benefit of creditors, or if a receiver or trustee in bankruptcy is appointed for the other, or if any
AquaticInformatics-Software License Agreement 2
Confidential -Company ProprietaryConfidential - Company Proprietary
proceeding in bankruptcy, receivership, or liquidation is instituted against the other and is not dismissed within
30 days following commencement thereof.
b) Either party may terminate this Agreement for cause upon 30 days advance notice to the other if there is any
material default or breach of this Agreement by the other, unless the defaulting party has cured the material
default or breach within the 30 day notice period.
If this Agreement is terminated for cause by Customer, then Provider shall refund Customer any fees payable for
Support and Maintenance ("SMA Fees") payable in advance of the effective date of termination. Upon termination for
cause by Provider, Customer shall pay any unpaid feescovering the remainder of the SMA Term after the effective date
of termination.In no event shall any termination relieve Customer of the obligation to pay any fees payable to Provider
for the period prior to the effective date of termination.
4.3. Anypost-termination assistance additional to thatdescribed belowis subject tomutual written agreement.
a) Generally. Upon any termination of thisAgreement:
(i) all yourrightsunder thisAgreement immediately terminate;
(ii) you remain responsible for all fees you haveincurred through the date of termination,including fees for
in-process tasks completed after the date of termination;
(iii) youwill immediately return or, if instructed by us,destroy all ProviderContent inyourpossession.
5. Proprietary Rights and confidentiality
5.1 Ownership.
a)-how in whatever form,
including, but not limited to, documented information, machine readable or interpreted information,
information contained in physical components, mask works and artwork, which Provider considers proprietary.
All Proprietary Information and intellectual property rights, title and interest, including copyright and trade
secret rights in and to anything associated with the Service Offering and the Provider Content remains that of
Provider. As between Provider and Customer, Customer exclusively owns all rights, titleand interest in and to all
No right or license is granted hereby to Subscriber or its customers, employees or
agents, expressly or byimplication, with respect tothe Proprietary Information or anypatent, patentapplication
or other proprietary right of Provider, except for the limited use licenses implied by law.
b) Customer shall not (i) permit any third party to access the Software except as expressly permitted, (ii) create
derivative works based on the Software, (iii) copy, frame or mirror any part or content of the Software, (iv)
reverse engineer the Software, or (v) accessthe Software in orderto build a competitive product or service, or
copy any features, functions or graphics of the Software.
c) Using the Software it is possible to collect aggregated anonymized data which is collected and stored without
("AggregatedData"). All Aggregated Datais the property of Provider and treated asConfidential Information.
5.2 "Confidential Information" means information concerning any information relating to the business and technology
of either party which is not generally available to third parties and which is treated by the parties, in accordance with
their policies, as confidentialinformationor a trade secret and specificallyincludes theSoftware,either parties Content,
business processes, information about either parties customers or users in any manner, shape or form or other like
information. For the purposes of thisAgreement, a party disclosing Confidential Information is a Discloser and the party
receiving Confidential Information is a Recipient. Confidential Information doesnot include information which is: at the
time of disclosure, or thereafter becomes part of the public domain without any violation of this Agreement by the
following the date of this Agreement is furnished to the Recipient by a third party without that third party being in
breach directly or indirectly of an obligation to the Discloser to keep such information secret confidential and secret;
nformation as evidenced by
reasonably detailed written records.
AquaticInformatics-Software License Agreement 3
Confidential -Company ProprietaryConfidential - Company Proprietary
5.3 Confidentiality. The following terms apply to Confidential Information and the ownership thereof. All Confidential
Information is owned by the respective parties. Neither party will, at any time, whether before or after the termination of
thisAgreement, disclose, furnish, or makeaccessible toanyone anyConfidential Information orpermit the occurrence of any
of the foregoing. Each party will hold the other's Confidential Information in confidence and will protect each other's
Confidential Information with the same degree of care with which it treats its own Confidential Information, but in no case
with any less degree than reasonable care. For certainty, Recipient and its customers, employees and agents will keep
confidential all such Proprietary Information obtained directly or indirectly from Provider and will not transfer or disclose it
without Providers prior written consent, or use it for the manufacture, procurement, servicing or calibration of Work or any
similar products, or cause such products tobe manufactured, serviced or calibrated byor procured from any other source, or
reproduce or otherwise appropriate it without prior written consent. Confidential Information may be disclosed to
a party only to employees or consultants having a need-to-know provided such parties are bound by confidentiality
obligations. If Confidential Information is disclosed inadvertently the disclosing party will immediately notify the other party
and will assist the other party in remedying the confidentiality breach. If Confidential Information is required to be disclosed
pursuant to a valid subpoena, governmental order, judicial order or other operation of law the disclosing party will
immediately notify the other party and will assist the other party seeking a protective order or other similar appropriate
remedy in order to limit the Confidential Information disclosure to the extent possible or practicable
6. Miscellaneous.
6.1 The parties acknowledge that each is an independent contractor and nothing in this Agreement constitutes a
joint venture or partnership and neither party has the right to bind nor act for the other as agent or in any other
capacity.
6.2 Sections 5 and 6 and any othersections that may be reasonably construedas intended tosurviveshall survive
termination of this Agreement.
6.3 Upon consent by Provider, this Agreement may be used for cooperative procurement by any public or municipal
body, entity, agency or institution, If so authorized, and in order to forego a related entity RFP or similar competitive
bidding process, the Agreement may be extended to such other entities for the procurement of similar products and/or
services provided to Customer and at fees inaccordance with theAgreement unlessseparately negotiated between such
other entities and Provider. Further related entities participating in a cooperative procurement process shall place their
own orders directly with Provider. Provider and such other entities will fully and independently administer their own
separate contracting processes but all in accordance with substantially similar contracting processes as set out in this
Agreement.
Providerand Customer haveexecuted thisAgreement as of the date below.
AQUATIC INFORMATICS City of Fort Worth
Date:
Per:
Date:
Per:
Name: Name:
Title: Title:
I/Wehave authority tobind the corporation. I/Wehaveauthority tobind the corporation.
AquaticInformatics-Software License Agreement 4
Confidential -Company ProprietaryConfidential - Company Proprietary
Schedule A
Description ofSoftware obtainedby Customer
Description ofSoftware Provided (See Schedule B for License Fee & Payment
Terms): WIMS and Rio Software to help manage wastewater data.
Description ofProfessionalServices Provided (SeeScheduleB forPayment Terms):
AquaticInformatics-Software License Agreement 5
Confidential -Company ProprietaryConfidential - Company Proprietary
ScheduleB
License Fee, SMA Fee and payment terms
1 License Term
1.1 ThisAgreement commencesbegins when AI sends login credentials to the Customer (Table 1). The LicenseTerm
begins regardless of whether or not the Professional Services (Table 2) have been delivered.
1.2 The License Term is perpetual. The term under which Support and Maintenance is provided toCustomer ("SMA
Term") is for one (1) year, and thereafter renews automatically for successive one (1) year periods unless either party
gives the other party 30 days written notice of its intent not to renew this Agreement prior to the expiration of the then
current term.
2 PaymentTerms
2.1 TheLicenseFee ispayable on thedate when Provider sendslogin credentialsto Customer (Table 1):
Table 1. License Fee
Software module License Fee
WIMS - Previously Purchased
RIO - Previously Purchased
TotalOne-Time License Fee
3 Annual SMA Fee
3.1 The Customer agreesto pay the annual SMA Feesfor Support and Maintenance of Software modules listed in the
table below each year thereafter. Provider may amend its fees for any renewal term on 30 days notice to Customer given
prior to the expiration of the current term. Any applicable taxes are not included in this fee.
3.2 Customer acknowledges that additional modules, additional systems/facilities being managed, or additional users
tothoselistedbelowmayrequireadjustmentsinpricingtotheSMAFee. Customercertifiesthattheinformationisaccurate
and agrees to notify Provider of any material change in the information.
Table 3.Annual SMAFee
Software module Annual SMA Fee
Wims & Rio Support and Maintenance April 26, 2024 $23,702.00
Wims & Rio Support and Maintenance April 26,
2025 (Additional PurchasesPending)
$24,887.00
Wims & Rio Support and Maintenance April 26,
2026 (Additional PurchasesPending)
$26,131.00
Wims & Rio Support and Maintenance April 26,
2027 (Additional PurchasesPending)
$27,437.00
Wims & Rio Support and Maintenance April 26,
2028 (Additional PurchasesPending)
$28,808.00
Total Annual SMA Feefor 5 years Pending $130,965
AquaticInformatics-Software LicenseAgreement 6
Confidential -Company ProprietaryConfidential - Company Proprietary
4 ProfessionalServicesFees
4.1 ProfessionalServicesand One-Time Fees are payable ondelivery of servicesunless stated otherwiseas follows:
PotentialProfessionalServices Description One-TimeFee
3 Day On-Site Training - Pending Purchase $13,650.00
Additional Rio Services(Pending Purchase) $1,840.00
Additional Remote Sites(1)WIMS
Implementation (Pending Purchase)
$5,900.00
Remote Training1x peryear(Quotewill beprovided as
needed)$3,700.00
Additional Custom PS Work (AsneededwithSOW
completion)$350.00/HR
Total SMAFee - Pending $25¿440
AquaticInformatics-Software License Agreement 7
Confidential -Company ProprietaryConfidential - Company Proprietary
ScheduleC
Support and Maintenance of Software
Support and maintenanceis provided withthe Software.
Providerwill maintain theSoftware at the latest releasemaking newenhancements andimprovements available aspart
of Provider's development methodology. In addition to regular maintenance of the Software, Provider will support you
by answering queries from technically-trained users designated by you and resolve such queries in a manner set out
below
1.0DEFINITIONS
(a)Case priority1 means theSoftware has a system outage or does not work per user documentation,
business operations have been severely disrupted and no work around is immediately available;
(b)Case priority 2
continuein a restricted fashion (although long-term productivity might be adversely affected) and nowork
around is immediately available;
(c)Case priority 3
components,but allows the user to continueusing thesoftware, a workaround exists but it isnot obviousor
is difficult and as a result there is significant impact productivity or efficiency;
(d)Casepriority4 means theSoftware doesnot work peruser documentation,businessoperationsare not
significantly impacted;
(e)Case priority 5 means the Software does not work per user documentation and doesnot affect business
operations or software does not work as expected and is not in user documentation or is an enhancement
request;
(f)Documentation means the instruction manual orhelp on the Software;
(g)Minor Release means a release of Software containing bug fixes or other small software changes provided
by Provider for the correction of Software anomalies, and made available to the Customer;
(h)Major Release means a release ofSoftware containingnew or improved functionality, and made available
to the Customer;
(i)Operating Hours are 8:00 am 8:00 pm (Mon Fri) Eastern Time excluding Provincial, Canadian, State and
US statutory holidays and 9:00 am - 5:00 pm (Mon Fri); Australian Eastern Standard Time excluding
Tasmanian and Australian statutory holidays;
(j)Resolution means one or more of the following outcomes: a) a mutually acceptablework around,b) a
configuration/data change or c) a Software Change;
(k)Change means changestoSoftware functionality;
(l)means thecurrent, generally available Major Release of the Software or one of its two
previous Major Releases.
2.0 SUPPORT ANDMAINTENANCE SERVICES
2.1 Description of Services. Duringany SMA Term and subject to theprovisions of thisAgreement, Provider will use
commercially reasonable efforts to provide the following Support and Maintenance Services:
(a) Livetelephonesupport withasupport representative duringOperating Hours;
(b) Emailsupport duringOperating Hours;
(c) Live Webconferencing witha supportrepresentative during Operating Hourswhere requiredto understand
the support case;
(d) Casetracking through our online casetracking system;
(e) Access to an online SupportPortal 24 hours a day, 7 daysa week; and
(f) Entitlement to download anduse each newMajor and Minor Release of the Software for which you have
obtained licenses.
AquaticInformatics-Software License Agreement 8
Confidential -Company ProprietaryConfidential - Company Proprietary
2.2 SupportService Level Agreement
CasePriority InitialResponse Target Timeto Resolution
1 1 businessday or sooner 3businessdays
2 1businessday 5businessdays
3 1businessday 10business days
4 1businessday At discretion
5 At discretion At discretion
(a) A Software Changeis only released before the next scheduledMajor Release when theSoftware Change is
the only way to resolve a priority 1 or 2 case;
(b) A Software Changeis only released for compatibility with the current Major Release or one of the two
previous Major Releases.
(c) If you are experiencing issues and not using a Supported Release of the Software, you must upgrade to a
SupportedRelease (preferably thelatestSupported Release) and then, if the original case persists, Provider
will work with you to find a mutually acceptable resolution.
(d) Youmustcheck on the Provider Support Portalto determine if youare using a Supported Release
(e) Initial Response and Target Time to Resolutiontime periods start once a case islogged in Support
Portal.
(f) Resolutiontimes mayexceed the Target Timeto Resolution time targetsdependingon the complexity
involved in determining the root cause of the case and the complexity of finding a resolution for it.
2.3 Resolutionof Software Anomaly. A Software anomaly will be consideredtobe resolved when:
(a) the Software is working in substantialaccordance with the Documentationwhen operated on the supported
hardware, operating system and peripheral as designated by Provider; or
(b) Providerhas advised you of one of the following:
(i) how tocorrect orbypass the Software anomaly;
(ii) that the correction to theSoftware anomaly will be available through a future Major or Minor
Release; or
(iii) thatthe anomaly falls withinan exception to thisAgreement.
3.0 EXCEPTIONS
3.1 Support and MaintenanceExclusions. Maintenance and Support Services are not provided for and donot apply
to:
(a) thirdparty software and middleware or services;
(b) whenyou are in breach of this Agreement or any other agreement with Provider;
(c) Softwarethatis improperlyimplemented;
(d) Hardware,peripherals (includingprinters)orsoftware otherthan theSoftware;
(e) Anomaliesinthe Software that are not reproducible;or
(f) Anomalies,damage or problemsin theSoftware or its operation caused by:
i. an incompatibleor non-functioningconfiguration,operating systemorhardware system;
ii. accident, abuse ormisapplication forwhichProvider isnot responsible;
iii. malfunction ornon-performance ofproductssupplied bythird parties;
iv. usecontrarytoits intended purpose or contrary to the Documentation; or
v. any other mattersbeyond control.
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Confidential -Company ProprietaryConfidential - Company Proprietary
3.2 Third PartyVendors. If Provider hascorrected a Softwareanomaly in aMinor Releaseor Major Release provided
to you, then Provider will not be required to provide any other correction for the Software anomaly provided
that the functionality of the Software has been maintained in relation to your business requirements. You will
look solely to the third party vendors of third party software, middleware, hardware or peripheral if there are
any anomalies, damage or problems to the Software in or caused by such software, middleware, hardware
and/or peripheral.
3.3 Interfaces. Provider will not be responsiblefor any of your integration requirementsfor the Software resulting
from your use of third party vendors who may not integrate with the Software.
3.4 Inactive Supportand Maintenance. Support and Maintenance only applies to customerswith a valid and current
SMA Term in place, and who are in good standing with accounting, finance and payment terms.
4.0 SUPPORT ANDMAINTENANCE PERIODSAND FEES
4.1 Renewal. Additional 12 month service periods are available following the expiry of a SMA Term. Prior to the
expiry of a Support and Maintenance service period, Provider may at its discretion send you an invoice for
renewal of Support and Maintenance for theapplicable SMA Term at the applicable SMA Fee. Failure topay the
invoice within the payment terms as detailed on the invoice will be deemed a rejection by you of the offered
Support and Maintenance and will result in termination of Support and Maintenance upon expiration of the
then-current SMA Term.
4.2 Taxes. The SMA Feesdo not include taxes. If Provider is required topay sales, use, property, value-added, goods
and services or other federal, provincial, state or local taxes based on the license granted under this Agreement
or on your use of the Software or documentation, then such taxes will be billed to and paid promptly by you.
AquaticInformatics-Software License Agreement 10
Confidential -Company ProprietaryConfidential - Company Proprietary
SCHEDULE D
Terms and Conditions of Sale
Thisdocument setsforth the Terms& Conditions of Sale forgoods manufactured and/or supplied, and servicesprovided,
by Aquatic Informatics ULC or other selling entity listed on the accompanying software, service or other agreement
otherwise specifically stated in a previously-executed written purchase agreement signed by authorized representatives
of Seller and Buyer, these Terms & Conditions of Sale establish the rights, obligations and remedies of Seller and Buyer
whichapply tothisoffer and any resulting order or contract for the sale of goodsand/or services
1. APPLICABLE TERMS& CONDITIONS
These Terms& Conditions of Sale are contained directly and/or by reference in Seller'soffer, order acknowledgment, and
invoice documents. The first of the following acts constitutes an
Seller; or (iii) commencement of any
electroniccommerce interfaces) that materially alter, add to or subtract from the provisionsof these Terms & Conditions
of Sale are not a part of the Contract.
2. PRICES
All prices, unless stated otherwise, are in U.S. dollars and are based on delivery as stated above unlessotherwise quoted
by Seller. Prices do not include any charges for services such as insurance; brokerage fees; sales, use, inventory or excise
taxes; import or export duties; special financing fees; VAT, income or royalty taxes imposed outside the U.S.; consular
fees; special permits or licenses; or other charges imposed upon the production, sale, distribution, or delivery of the
Work. Buyer will either pay any and all such charges or provide Seller with acceptable exemption certificates, which
obligation survives performance under this Contract.
3. LIMITEDWARRANTY
Seller warrants that Work sold hereunder will be free from defects in material and workmanship and will, when used in
pertaining to the specific Work purchased.. Seller warrants that Work furnished hereunder will be free from defects in
workmanship for a period of ninety (90) days from the completion of the Work. Parts provided by Seller in the
performance of services may be new or refurbished parts functioning equivalent to new parts. Any non-functioning parts
that are repaired by Seller shall become the property of Seller. All other guarantees, warranties, conditions and
representations, either express or implied, whether arising under any statute, law, commercial usage or otherwise,
including implied warranties of merchantability and fitnessfor a particular purpose, are hereby excluded. The sole remedy
the purchase
price. This remedy will not be deemed to have failed of its essential purpose so long as Seller is willing to provide such
replacement, credit or refund.
4. INDEMNIFICATION
Any and all indemnification obligations imposed upon Seller are limited to the extent of those damages proportionately
causedby breach of the Agreement, negligence, wrongful conduct, or violations of law. In no case is Seller liable
for any damages caused by negligence, misuse or misapplication of goods or services by others. Buyer shall defend,
indemnify andhold harmlessSeller against any and all damages tothe extent cause by misuse or misapplication of Work,
breach of this Agreement, negligence, wrongful conduct, or violations of law by Buyer or its affiliates or those employed
by, controlled by or in privity with them, and Buyer agrees to so defend and indemnify Seller.
5. PATENTPROTECTION
design or
manufacture, indemnify Buyer from any and all damages and costs as finally determined by a court of competent
jurisdiction inany suit for infringement ofany Canadian or U.S. patent (or European patent forWorkthat Sellersells to
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Buyer for end use in a member state of the E.U.) that has issued as of the delivery date, solely by reason of the sale or
normal use of any Work sold to Buyer hereunder and from reasonable expenses incurred by Buyer in defense of such suit
if Seller does not undertake the defense thereof, provided that Buyer promptly notifies Seller of such suit and offers Seller
either (i) full and exclusive control of the defense of such suit when Work of Seller only are involved, or (ii) the right to
use patents only applies to infringement arising solely out of the inherent operation of the Work according to their
applications asenvisioned by specifications. In case the Work are in such suit held to constitute infringement and
the use of the Work is enjoined, Seller will, at its own expense and at its option, either procure for Buyer the right to
continue using such Work or replace them with non-infringing products, or modify them so they become non-infringing,
or remove the Work and refund the purchase price (prorated for depreciation) and thetransportation costs thereof. The
foregoing states the entire liability of Seller for patent infringement by the Work. Further, to the same extent as set forth
in above obligation to Buyer, Buyer agrees to defend, indemnify and hold harmless Seller for patent infringement
instructions, or (c) work when used in combination with any other devices, parts or software not provided by
Seller hereunder.
6. SOFTWARE AND DATA
-provided software products are subject to the separate software license agreement(s)
accompanying the software media. Except to the extent such express licenses conflict with the remainder of this
-exclusive
license to access and use the software provided by Seller with Work purchased hereunder solely as necessary for Buyer
to enjoy the benefit of the Work. A portion of the software may contain or consist of open source software, which Buyer
may use under the terms and conditions of the specific license under which the open source software isdistributed.
Buyer agrees that it will be bound by all such license agreements. Title to software remains with the applicable
licensor(s).
7. EXPORT AND IMPORT LICENSES AND COMPLIANCE WITH LAWS AND RELATED COMPANY POLICIES
Unless otherwise specified in this Contract, Buyer is responsible for obtaining any required export or import licenses.
Seller represents that all Work delivered hereunder will be produced and supplied in compliance with all applicable laws
and regulations. Buyer will comply with all laws and regulations applicable to the installation or use of all Work, including
applicable import and export control laws and regulations of the U.S., E.U., and any other country having proper
jurisdiction, and will obtain all necessary export licenses in connection with any subsequent export, re-export, transfer
and use of all Work and technology delivered hereunder. Buyer will not sell, transfer, export or re-export any Seller Work
or technology for use in activities which involve the design, development, production, use or stockpiling of nuclear,
chemical or biological weapons or missiles, nor use Seller Work or technology in any facility which engages in activities
relating to such weapons. Buyer will comply with all local, national, and other laws of all jurisdictions globally relating to
anti-
connection with this Contract, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977, asamended
(the
transferred, directly orindirectly, by any person or entity, to any government official, government employee, or
employee of any company owned in part by a government, political party, political party official, or candidate for any
government office or political party office to induce such organizations or persons to use their authority or influence to
obtain or retain an improper business advantage for Buyer or forSeller, or which otherwise constitute or have the
purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other
unlawful or improper means of
relation to this Contract. See http://danaher.com/integrity-and-compliance and
www.danaherintegrity.com for a copy of the SOC and for access to our Helpline portal.
AquaticInformatics-Software License Agreement 12
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8. FORCE MAJEURE
Seller is excused from performance of its obligations under this Contract to the extent caused by acts or omissions that
are beyond itscontrol, including but not limited toGovernment embargoes, blockages,seizures or freeze of assets,delays
or refusals to grant an export or import license or the suspension or revocation thereof, or any other acts of any
Government; fires, floods, severe weather conditions, or any other acts of God; quarantines; labor strikes or lockouts;
riots; strife; insurrections; civil disobedience or acts of criminals or terrorists; war; material shortages or delays in
deliveries to Seller by third parties. In the event of the existence of any force majeure circumstances, the period of time
for delivery, payment terms and payments under any letters of credit will be extended for a period of time equal to the
period of delay. If the force majeure circumstances extend for six months, Seller may, at its option, terminate this
Contract without penalty and without being deemed in default or in breach thereof.
9. NON-ASSIGNMENT ANDWAIVER
Buyer will not transfer or assign this Contract or any rights or interests hereunder without Selle
Failure of either party to insist upon strict performance of any provision of this Contract, or to exercise any right or
privilege contained herein, or the waiver of any breach of the termsor conditionsof this Contract will not be construed as
thereafter waiving any such terms, conditions, rights, or privileges, and the same will continue and remain in force and
effect as if no waiver had occurred.
10. LIMITATION OF LIABILITY
None of the Seller Indemnified Partieswill be liable toBuyer under any circumstances for any special,treble, incidental or
consequential damages, including without limitation, damage to or loss of property other than for the Work purchased
hereunder; damages incurred in installation, repair or replacement; lost profits, revenue or opportunity; loss of use;
losses resulting from or related to downtime of the products or inaccurate measurements or reporting; the cost of
sed, and whether based on
warranty, contract, and/or tort (including negligence, strict liability or otherwise). The total liability of the Seller
obligations in connection
with the design, manufacture, sale, delivery, and/or use of Work will in no circumstance exceed in the aggregate a sum
equal to twice the amount actually paid to Seller for Work delivered hereunder.
11. APPLICABLE LAW AND DISPUTE RESOLUTION
The construction, interpretation and performance hereof and all transactions hereunder shall be governed by the laws of
the Province of British Columbia,without regard toits principles or laws regarding conflicts of laws. If any provision of this
Contract violates any Federal, State or local statutes or regulations of any countries having jurisdiction of this transaction,
or is illegal for any reason, said provision shall be self-deleting without affecting the validity of the remaining provisions.
Unless otherwise specifically agreed upon in writing between Seller and Buyer, any dispute relating tothis Contract which
is not resolved by the parties shall be adjudicated in order of preference by a court of competent jurisdiction (i) in the
Province of British Columbia, if Buyer has minimum contacts with British Columbia and, (ii) elsewhere in Canada if Buyer
has minimum contacts with Canada, but not British Columbia, (iii) in the State of New York if Buyer does not have
minimum contacts with Canada.
12. FUNDS TRANSFERS. Buyer and Seller both recognize that there is a risk of banking fraud when individuals
impersonating a business demand payment under new banking or mailing instructions. To avoid this risk, Buyer must
verbally
accounts receivable contract before mailing or transferring any monies using the new instructions. Both parties agree
that they will not institute mailing or bank transfer instruction changes and require immediate payment under the new
instructionsbut will insteadprovide a ten (10) day grace period to verify any paymentinstruction changesbefore anynew
or outstanding payments are due using the new instructions.
13. ENTIRE AGREEMENT & MODIFICATION
These Terms & Conditions of Sale and accompanying software or service agreement constitute the entire agreement
between the parties and supersede any prior agreementsor representations, whether oralor written. No changeto or
modification of these Terms & Conditions shall be binding upon Seller unless in a written instrument specifically
referencing that it is amending these Terms & Conditions of Sale and signed by an authorized representative of Seller.
AquaticInformatics-Software License Agreement 13
Confidential -Company ProprietaryConfidential - Company Proprietary
Seller rejects any additional or inconsistent Terms & Conditions of Sale offered by Buyer at any time, whether or not such
termsor conditions materially alter the Terms& Conditions herein and irrespective of acceptance of order
for the described goods and services.
AquaticInformatics-Software LicenseAgreement 14
Confidential - Company Proprietary
Terms and Conditions Document
for
City of Fort Worth
April 27, 2023
Confidential -Company Proprietary
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Date: April 27, 2023
City of Fort Worth
920FournierStreet
Fort Worth, Texas 76102
Re:TermsandConditionsDocument
To Whom is may concern,
May 1, 2022
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS
MAY HAVE CHANGED. BY USING ANY OF THE SERVICES OR SOFTWARE PROVIDED BY AQUATIC
INFORMATICS OR ITS SUBSIDIARIES OR AFFILIATES, YOU CONFIRM YOUR ACCEPTANCE OF THESE
TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY
OR OTHER ENTITY, YOU REPRESENTTHAT YOU HAVE THE LEGAL AUTHORITY TO BINDTHAT ENTITY TO
THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY OR DO NOT ACCEPT THESE
TERMS AND CONDITIONS, THEN YOU MAY NOT USE THE SERVICES OR SOFTWARE.
Terms and Conditions of Sale
This document sets forth the Terms & Conditions of Sale for software, goods manufactured and/or
supplied, and services provided, by Aquatic Informatics or any of its affiliatesor subsidiaries
identified as the selling entity listed on the accompanying software, service or other agreement
accompanyi
Unless otherwise specifically stated in a previously executed written purchase agreement signed by
authorized representatives of Provider and Subscriber, these Terms & Conditions of Sale establish the
entirety ofthe rights, obligations and remedies of Provider and Subscriber which apply to this offer and
Offering
APPLICABLE TERMS & CONDITIONS
These Terms & Conditions of Sale are contained directly and/or by reference in Provider's offer, order
acknowledgment, Service Offering and Service Level Agreement and any related invoice documents
(collectively Offering The first of the following actsconstitutes an acceptance of
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offer and not a counteroffer and creates a contract of sale in accordance with these Terms &
(iii) commencement of any performance by
(including electronic commerce interfaces) that are in conflict with, materially alter, add to and/or
subtract from the provisions of these Terms & Conditions ofSale are not a part of the Service Offering
Agreement.
1. Fees and Payment. Fees charged for the Services Offering/Work are set out in your quotation. All
such fees are payable on a net 30 days basis without setoff or counterclaim, and without any deduction
or withholding. Provider will notify you if there are any fees charged for new options applicable to the
Service Offering/Work or if there are fee increases. Overdue invoices will accrue interest at the rate of
1.5% of the outstanding balance per month
2. Consequences of Breach. Provider may terminate your Service Offering/Work access if you breach, or
Provider has a reasonable basis to believe you will breach anypart of the Services Offering Agreement in
a way that: (i) poses a security risk to Provider or any third party, (ii) may adversely impact the Service
Offering/Work, Provider or a third party's operations, (iii) may subject Provider or any third party to
liability, or (iv) may be fraudulent; or (v) breaches applicable law or regulation.
Provider will give Subscriber written notice ofsuch breach. If such breach is not corrected in the time
required by the Provider, the Provider may terminate the Service Offering/Work.
2.1. Insteadof termination Provider may choose to suspend your right to access or use any portionor all
the Service Offering/Work. In such event;
a) you remain responsible for all fees and charges you have incurred through the date of
suspension;
b) you remain responsible for any applicable Service Offering/Work fees for any modules to which
you continue to have access (including hosting, data storage fees or fees for in-process tasks completed
after the date of suspension; and
c) you will notbe entitled to any service credits for any periodof suspension.
Provider's right to suspend Subscriber's access or use the Service Offering/Work is in addition to
Provider's termination rights set out below.
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3. Term and Termination. The Service Offering Agreement becomes effective when the quotation is
signed by both Subscriber and Provider. The term of thee Service Offering Agreement shall commence
when Provider sends Subscriber login credentials for the Services Offering/Work quoted and is for the
length of time stated onthe quotation ("SubscriptionTerm"). If not stated in the quote the Subscription
Term will be for a yearly term and will not auto-renew for successive yearly periods.
3.1 Additionally, the Services OfferingAgreement shall terminate in each of the following events:
a) Either party may terminate the Service Offering Agreement if the other becomes insolvent or
bankruptor makes an assignment for the benefit of creditors, or if a receiver or trustee in bankruptcy is
appointed for the other, or if any proceeding in bankruptcy, receivership, or liquidation is instituted
against the other and is not dismissed within 30 days following commencement thereof.
b) Either party may terminate the Services Offering Agreement for cause upon thirty (30) days
advance notice to the other if there is any material default or breach by the other, unlessthe defaulting
party has cured the material default or breach within the thirty (30) day notice period.
c) Termination as set forth in Section 3.
If the Services Offering Agreement subscription is terminated for cause by Subscriber, then Provider shall
refund Subscriber any prepaid fees covering the remainder of the Subscription Term after the effective
date of termination. Upon termination for cause by Provider, Subscriber shall pay any unpaid fees
covering the remainder of the Subscription Term after the effective date of termination. In no event shall
any termination relieve Subscriber of the obligation to pay any fees payable to Provider for the period
prior to the effective date of termination.
3.2. Anypost-terminationassistance additional to that described below is subject tomutual written
agreement.
a) Generally. Upon any termination of the Services Offering Agreement:
(i) all your rights under immediately terminate;
(ii) you remain responsible for all fees you have incurred through the date of termination, including
fees for in-process tasks completed after the date of termination;
(iii) you will immediately return or, if instructed byus, destroy all Confidential Information provided
to you by the Provider.
b) Post-TerminationAssistance. Followingtermination:
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(i) unless notified otherwise by you, for a period of thirty (30) days following termination we will not
erase any of your Content (which is defined to include all information provided by Subscriber through
configuration of the Service Offering/Work or any data submitted by the Subscriber, or by any party
authorized by the Subscriber to submit data to support or enable the Service Offering/Work) as a result
of the termination in order to allow you retrieve your Content;
(ii) you may retrieve your Content from theService Offering/Work only ifyou havepaid all fees due
to Provider;
(iii) if more than thirty (30) days post-termination are required for you to retrieve all your Content,
you will be chargedfor a month-to-month subscription service for each additional thirty (30) day period
you require to retrieve your Content;
(iv) upon retrieval of your Content, you may instruct Provider to destroy all copies of your Content
stored on the Service Offering/Work and request Provider to provide certification in writing that all your
Content has been destroyed within fifteen (15) days of Provider receiving Subscriber instructions; and
(v) Provider will provide you with the same post-termination data retrieval assistance that it
generallymakes available toall Subscribers on a time and materials basis at then stated hourly rates.
4. Proprietary Rights and Confidentiality.
4.1 Ownership.
a)meansany information, technical data or know-how inwhatever form,
including, but not limited to, documented information, machine readable or interpreted information,
information contained in physical components, mask works and artwork, which Provider considers
proprietary. All Proprietary Information and intellectual property rights, title and interest, including
copyright and trade secret rights in and to anything associated with the Service Offering/Work and the
Content remains that of Provider. As between Provider and Subscriber, Subscriber exclusively owns all
Subscriber or its customers, employees or agents, expressly or by implication, with respect to the
Proprietary Information or any patent, patent applicationor other proprietary right of Provider, except
for the limited use licenses implied by law.
b) Subscriber shall not (i) permit any third party to access the Service Offering/Work except as
expressly permitted, (ii) create derivative works based on the Service Offerings, (iii) copy, frame or mirror
any part or content of the Services, (iv) reverse engineer the Service Offering/Work, or (v) access the
Service Offering/Work in order to build a competitive product or service, or copy any features, functions
or graphics of the Service Offering/Work.
d) Using the Service Offering it is possible to collect aggregated anonymized data in which all
personal identifiers havebeen removed, suchthat the information could not reasonably be used to
identifyan individual, which is collected and stored without association with Personally Identifiable
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Information (PII) and does not identify Subscriber or any of Subscriber's personnel in any way
("Aggregated Data"). Provider may collect, use and disclose such Aggregated Data for any purposes
including for research, analysis, reporting and to further develop the Service Offerings and ancillary
services. Provider has exclusive ownership, use, and distributionrights to such AggregatedData for
any purpose, including, but not limited to, advertising, marketing, and promotion of opportunities to
other clients and prospective clients of its Service Offering/Work.
4.2 "Confidential Information" means information concerning any information relating to the business
and technology of either party which is not generally available to third parties and which is treated by
the parties, in accordance with their policies, as confidential information or a trade secret and
specifically includes the Services, either parties Content, business processes, information about either
parties customers or users in any manner, shape or form or other like information. For the purposes of
this Service Offering, a party disclosing Confidential Information is a Discloser and the party receiving
Confidential Information isa Recipient. Confidential Information does notinclude information which is:
at the time of disclosure, or thereafter becomes part of the public domain without any violation by the
Recipient; already in the possessionbefore disclosure of such information to the Recipient by
the Discloser; following the date of the signed quotation is furnished to the Recipient by a third party
without that third party being in breach directly or indirectly of an obligation to the Discloser to keep
such information secret confidential and secret; and developed independently by the Recipient without
4.3 Confidentiality.The following terms applyto Confidential Information and the ownership thereof. All
Confidential Information is owned by the respective parties. Neither party will, at any time, whether
before or after the termination, disclose, furnish, or make accessible to anyone any Confidential
Information or permit the occurrence of any of the foregoing. Each party will hold the other's
Confidential Information in confidence and will protect each other's Confidential Information with the
same degree of care with which it treats its own Confidential Information, but in no case with any less
degree than reasonable care. For certainty, Recipient and its customers, employees and agents will keep
confidential all such Proprietary Information obtained directly or indirectly from Provider and will not
transfer or disclose it without Providers prior written consent, or use it for the manufacture,
procurement, servicing or calibration of Work or any similar products, or cause such products to be
manufactured, serviced or calibrated by or procured from any other source, or reproduce or otherwise
appropriate it w
party only to employees or consultants having a need-to-know provided such parties are bound by
confidentiality obligations. If Confidential Information is disclosed inadvertently the disclosing party will
immediately notify the other party and will assist the other party in remedying the confidentiality
breach. If Confidential Information is required to be disclosed pursuant to a valid subpoena,
governmental order, judicial order or other operation of law the disclosing party will immediately notify
the other party and will assist the other party seeking a protective order or other similar appropriate
remedy in order to limit the Confidential Information disclosure to the extent possible or practicable.
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5. Miscellaneous. The parties acknowledge that each is an independent contractor and nothing in this
Service Offering Agreement constitutes a joint venture or partnership and neither party has the right to
bind nor act for the other as agent or in any other capacity.
5.1 Sections 5 and 6 and any other sections thatmay be reasonably construed as intended to survive
shall survive termination of the Service Offering Agreement.
5.2 Upon consent by Provider, this Service Offering Agreement may be used for cooperative
procurement by any public or municipal body, entity, agency or institution, If so authorized, and in order
to forego a related entity RFP or similar competitive bidding process, the Service Offering Agreement
maybe extendedto suchother entities for the procurementof similar products and/or services provided
to Subscriber and at fees in accordance with the Service Offering Agreement unless separately
negotiated between such other entities and Provider. Further related entities participating in a
cooperative procurement process shall place their own orders directly with Provider. Provider and such
other entities will fully and independently administer their own separate contracting processes but all in
accordance with substantially similar contracting processes as set out in thisService Offering Agreement.
6. Prices. All prices, unlessstated otherwise, are in U.S. dollars and are basedon delivery as stated above
unless otherwise quoted by Provider. Prices do not include any charges for services such as insurance;
brokerage fees; sales, use, inventory or excise taxes; import or export duties; special financing fees; VAT,
income or royalty taxes imposed outside the U.S.; consular fees; special permits or licenses; or other
charges imposed upon the production, sale, distribution, or delivery of the Work. Subscriber will either
pay all such charges or provide Provider with acceptable exemption certificates, which obligation
survives performance under this Service Offering Agreement.
7. Limited Warranty. Provider warrants that the Service Offering/Work sold hereunder will be free from
defects in material and workmanship and will, when used in accordance with the
operating and maintenance instructions, conform to any express written warranty pertaining to the
specific Service Offering/Work purchased. Provider warrants that Work furnished hereunder will be free
from defects in workmanship for a period of ninety (90) days from the completion of the Work. Parts
provided by Provider in the performance of services may be new or refurbished parts functioning
equivalent to new parts. Any non-functioning parts that are repaired by Provider shall become the
property of Provider. All other guarantees, warranties, conditions and representations, either express or
implied, whether arising under any statute, law, commercial usage or otherwise, including implied
warranties of merchantability and fitness for a particular purpose, are hereby excluded. The sole remedy
for Service Offering/Worknot meetingthis Limited Warranty isat option: repair, replacement,
or credit or refund of the purchase price. This remedy will not be deemed to have failed of its essential
purpose so long as Provider is willing to provide such replacement, credit or refund.
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8. Indemnification. All indemnificationobligations imposed upon Provider are limited to the extent of
those damages
negligence, wrongful conduct, or violationsof law. In no case is Provider liable for any damages caused
by negligence, misuse or misapplication of Service Offering/Work by others. Subscriber shall defend,
indemnify and hold harmless Provider against all damages to the extent cause by misuse or
misapplication of Service Offering/Work, breach of this Service Offering Agreement, negligence,
wrongful conduct, or violations oflaw by Subscriber or its affiliates or those employedby, controlled by
or in privity with them, and Subscriber agrees to so defend and indemnify Provider.
9. Patent Protection. Subject to all limitations of liability provided herein, Provider will, with respect to
damages and costs as finally determined by a court of competent jurisdiction in any suit for infringement
of any Canadian or U.S. patent (or European patent for Service Offering/Work that Provider sells to
Subscriber for end use in a member state of the E.U.) that has issued as of the delivery date, solely by
reason of the sale or normal use of any Service Offering/Work sold to Subscriber hereunder and from
reasonable expenses incurred by Subscriber in defense of such suit if Provider does not undertake the
defense thereof, provided that Subscriber promptly notifies Provider of such suit and offers Provider
either (i) full and exclusive control of the defense of such suit when Service Offering/Work of Provider
only are involved, or (ii) the right to participate in the defense of such suit when products other than
ringement
arising solely out ofthe inherent operation of the Service Offering/Workaccording to their applications
constitute infringement and the use of the Work is enjoined, Provider will, at its own expense and at its
option, either procure for Subscriber the right to continue using such Service Offering/Work or replace
them with non-infringing software, services, and/or products, or modify them so they become non-
infringing, or remove the Service Offering/Work and refund the purchase price (prorated for
depreciation) and the transportation costs thereof. The foregoing states the entire liability of Provider
for patent infringement by the Service Offering/Work. Further, to the same extent as set forth in
Provider for patent infringement related to (a) any Service Offering/Work or goods manufactured to the
design, (b) software or services provided in accordance withthe instructions, or
(c)Service Offering/Work when used in combination with any other devices, partsor software
not provided by Provider hereunder.
10. Software and Data.All licenses to separately provided software products are subject to the
separate software license agreement(s) accompanying the software media. Except to the extent such
express licenses conflict with the remainder of this paragraph, the following also applies relative to
software: Provider grants Subscriber only a personal, non-exclusive license to access and use
the software provided by Provider with the Service Offering/Work purchased hereunder solely as
necessary for Subscriber to enjoy the benefit of the Service Offering/Work. A portion of the software
may contain or consist of open-source software, which Subscriber may use under the terms and
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conditions of the specific license under which the open-source software is distributed. Subscriber agrees
that it will be bound by all such license agreements. Title to software remains with the applicable
11. Export and Import Licenses and Compliance with Laws and Related Company Policies.
Unless otherwise specified in this Service Offering Agreement, Subscriber is responsible for obtaining any
required export or import licenses. Provider represents that all Service Offerings/Work delivered
hereunder will be produced and supplied in compliance with all applicable laws and regulations.
Subscriber will comply with all laws and regulations applicable to the installation or use of all such
Service Offerings/Work, including applicable import and export control laws and regulations of the U.S.,
E.U., and any other country having proper jurisdiction, and will obtain all necessary export licenses in
connection with any subsequent export, re-export, transfer and use of all Work and technology delivered
hereunder. Subscriber will not sell, transfer, export or re-export any Provider Service Offering/Work or
technology for use in activities which involve the design, development, production, use or stockpiling of
nuclear, chemical or biological weapons or missiles, nor use Provider Service Offerings/Work or
technology in any facility which engages in activities relating to such weapons. Subscriber will comply
with all local, national, and other laws of all jurisdictions globally relating to anti-corruption, bribery,
connection with this Service Offering Agreement, including but not limited to the U.S. Foreign Corrupt
Practices
provision of anything of value will be offered, promised, paid or transferred, directly or indirectly, by any
person orentity, to any government official, government employee, or employee of any company owned
in part by a government, political party, political party official, or candidate for any government office or
political party office to induce such organizations or persons to use their authority or influence to obtain
or retain an improper business advantage for Subscriber or for Provider, or which otherwise constitute
or have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in
extortion, kickbacks or other unlawful or improper means of obtaining business or any improper
http://danaher.com/integrity-and-
compliance and www.danaherintegrity.com for a copy of the Code and for access to our Helpline portal.
12. Force Majeure. Provider is excused from performance of its obligations under this Service Offering
Agreement to the extent caused by acts or omissions that are beyond its control, including but not
limited to Government embargoes, blockages, seizures or freeze ofassets, delays orrefusals to grant an
export or import license or the suspension or revocation thereof, or any other acts of any Government;
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fires, floods, severe weather conditions, or any other acts of God; quarantines; labor strikes or lockouts;
riots; strife; insurrections; civil disobedience or acts of criminalsor terrorists; war; material shortages or
delays in deliveries to Provider by third parties. In the event of the existence of any force majeure
circumstances, the period of time for delivery, payment terms and payments under any letters of credit
will be extended for a period of time equal to the period of delay. If the force majeure circumstances
extend for six months, Provider may, at its option, terminate any part of or all of this Service Offering
Agreement without penalty and without being deemed in default or in breach thereof.
13. Non-Assignment and Waiver. Subscriber will not transfer or assign this Service Offering Agreement or
any rights orinterests hereunder without prior written consent. Failure ofeither partyto insist
upon strict performance of any provision of this Service Offering Agreement, or to exercise any right or
privilege contained herein, or the waiver of any breach of the terms or conditions of this Service Offering
Agreement will not be construed as thereafter waiving any such terms, conditions, rights, or privileges,
and the same will continue and remain in force and effect as if no waiver had occurred.
14. Limitation of Liability. Provider, its affiliates, subsidiaries, and each of their respective directors,
officers, members, partners, and/or employees (individually, a Indemnified and
will not be liable to Subscriber under any circumstances
for any special, treble, incidental or consequential damages, including without limitation, damage to or
loss of property other than for the Work purchased hereunder; damages incurred in installation, repair
or replacement; lost profits, revenue or opportunity; loss of use; losses resulting from or related to
downtime of the products or inaccurate measurements or reporting; the cost of substitute products; or
claims of customers for suchdamages, howsoever caused, and whether based on warranty,
contract, and/or tort (including negligence, strict liability or otherwise). The total liability of the Provider
Indemnified Parties arising out of the performance or non-
obligations in connection with the design, manufacture, sale, delivery, and/or use of the Service
Offering/Work will inno circumstance exceed in the aggregatea sum equal to twice the amount actually
paid to Provider for any Service Offering/Work delivered hereunder.
15. Applicable Law and Dispute Resolution. The construction, interpretation and performance hereofand
all transactions hereunder shall be governed by the laws of the Province of British Columbia, without
regard to its principles or laws regarding conflicts of laws. If any provision of this Service Offering
Agreement violates any Federal, State or local statutes or regulations of any countries having jurisdiction
of this transaction, or is illegal for any reason, said provision shall be self-deleting without affecting the
validity of the remaining provisions. Unless otherwise specifically agreed upon in writing between
Provider and Subscriber, any dispute relating to this Service Offering agreement which is not resolved by
the parties shall be adjudicated in order of preference by a court of competent jurisdiction (i) in the
Province of British Columbia, if Subscriber has minimum contacts with British Columbia and, (ii)
elsewhere in Canada if Subscriber has minimum contacts with Canada, but not British Columbia, (iii) in
the State of New York if Subscriber does not have minimum contacts with Canada.
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16. Funds Transfers. Subscriber and Provider both recognize that there is a risk of banking fraud when
individuals impersonating a business demand payment under new banking or mailing instructions. To
avoid this risk, Subscriber must verbally confirm any new or changed bank transfer or mailing
instructions by calling Pr
or transferring any monies using the new instructions. Both parties agree that they will not institute
mailing or bank transfer instruction changes and require immediate payment under the new instructions
but will instead provide a ten (10) day grace period to verify any payment instruction changes before any
new or outstanding payments are due using the new instructions.
17. Entire Agreement & Modification. These Terms & Conditions of Sale and accompanying software or
service agreement constitute the entire agreement between the parties and supersede any prior
agreements or representations, whether oral or written. No change to or modification of these Terms &
Conditionsshall be binding upon Provider unlessin a written instrument specifically referencing that it is
amending these Terms & Conditions of Sale and signed by an authorized representative of Provider.
Provider rejects any additional or inconsistent Terms & Conditions of Sale offered by Subscriber at any
time, whether or not such terms or conditions materially alter the Terms & Conditions herein and
irrespectiveof acceptance of order for the described Service Offering/Work.
Please contact me with any questions or concerns. I may be reached at 303-515-7536.
Thank you,
Cassandra Fortner
AccountManagerI
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Subscriber::City of Forth Worth,Texas
Signature:Per:
Name:
Title:
Date:
Details:Phone:
Email:
Company:CityofForth Worth,Texas
Provider:Aquatic Informatics
Provider Signature:Per:
Name:
Title:
Date:
Routing and Transmittal Slip
Water
DOCUMENT TITLE:
Department
Aquatic Informatics Contract
TO: APPROVER INITIALS:
Rick Lisenbee Approver
Homer Garza - Signer
Vendor: Hazel Joomratty, CEO hazel.joomratty@aquaticinformatics.com
Shane Zondor - Approver
Jan Hale Approver
Chris Harder - Signer
Taylor Paris - Signer
Dana Burghdoff - Signer
Ron Gonzales - Approver
Jannette Goodall - Signer
Allison Tidwell Form Filler
Charmaine Baylor Acceptor
Needs to be notarized:
TO:
Needs to be notarized: YES × NO
Action Required:
As Requested
For Your Information
× Signature/Routing and/or Recording
Comment
File
FOR CMO USE ONLY: Routing to CSO x YES NO
Confidential - Company Proprietary
EXPLANATION MEMO
Attached is the contract between the Water Department and Aquatic Informatics (formerly Hach
Company) for the software, maintenance & support, professional services, and training for the
Water Information Management Solution. This program allows all water treatment plant data to
be collected, managed and reported in a secure database. It is also used to generate reports to
TCEQ and other regulatory agencies.
The contract has a not to exceed amount of $95,898.00. The term of the agreement will
commence on May 1, 2023. It will expire on April 30, 2024 and has four one-year renewals.
Please approve/sign the renewal letter via Adobe eSign. If you have any questions or concerns,
feel free to call or email me.
Charmaine Baylor
Sr. IT Business Planner, Water IT
Fort Worth Water Department
200 Texas Street
Fort Worth,Texas 76102
Phone: (817) 392-6629
Email:Charmaine.baylor@fortworthtexas.gov