|
Contract Addendum to City of Everett – PO (the “Project”)
<br />
<br />Parties: City of Everett (“Customer”) Date: December __, 2022
<br />Aquatic Informatics ULC (“AQI” or “Seller”)
<br />
<br />Recitals: Customer and AQI are entering into a contract for the purchase of AQI’s software, goods and/or services
<br />(“Software,” “Goods” and/or “Services”) related to the Project and, for convenience, are using Customer’s Purchase
<br />Order and attached terms and conditions to which this Addendum is attached (“Customer’s Bas e Contract”). This
<br />Contract Addendum (the “Addendum”) is intended to provide reasonable revisions to Customer’s Base Contract to
<br />enable the parties to enter a contract for the purchase of Software, Goods and /or Services related to the Project
<br />without prolonged or complex negotiations over terms and conditions. Accordingly, the parties incorporate this
<br />Addendum into the Customer’s Base Contract and make it an integral part thereof, taking precedence over any
<br />contrary or related terms or conditions that may be contained therein, in any purchase orders, or in any other
<br />writings, addenda or exhibits constituting part of the agreement between the parties (collectively, the “Agreement”).
<br />
<br />Revisions: Notwithstanding anything to the contrary contained in the Agreement, the following provisions and rules
<br />of construction apply:
<br />
<br />1. Software; Services. AQI grants to Customer, a license which permits Customer to use the Software in
<br />executable code format only and in the manner as agreed to by the Parties. The Software is licensed, not
<br />sold. AQI, and not Customer, owns the Software, which is protected by United States, Canadian and
<br />international copyright laws. Customer may use the Software only in the manner as agreed by the Parties.
<br />This Agreement gives Customer no intellectual property rights in the Software. The Services shall be
<br />limited to those services specifically described herein. For the avoidance of doubt, and without limitation,
<br />AQI has no responsibility for the supervision or actions of Customer’s employees or contractors or for
<br />non-AQI chemicals or equipment and disclaims all liability and responsibility for any loss or damage that
<br />may be suffered as a result of such aspects or actions or any other aspects or actions not under AQI’s
<br />control.
<br />
<br />2. Indemnification. Any and all indemnification obligations imposed upon AQI are limited to the extent of
<br />those damages proportionately caused by AQI’s breach of the Agreement, negligence, wrongful conduct,
<br />or violations of law. In no case is AQI liable for any damages caused by negligence, misuse or
<br />misapplication of the Software or Goods by others. For non-government customers, AQI’s indemnification
<br />obligations are provided on the condition that Customer defends, indemnifies and holds harmless AQI
<br />against any and all damages to the extent caused by misuse or misapplication of the Software and the
<br />Goods, negligence, wrongful conduct, or violations of law by Customer, its affiliates, or those employed
<br />by, controlled by or in privity with them, and Customer agrees to so defend and indemnif y AQI.
<br />Customer’s workers’ compensation immunity, if any, does not preclude or limit its indemnification
<br />obligations.
<br />
<br />3. Limitation on Liability. THE TOTAL LIABILITY OF EITHER PARTY AND ITS SUBSIDIARIES, AFFILIATES,
<br />EMPLOYEES, DIRECTORS, OFFICERS AND AGENTS ARISING OUT OF PERFORMANCE, NONPERFORMANCE,
<br />OR OBLIGATIONS IN CONNECTION WITH THE DESIGN, MANUFACTURE, SALE, DELIVERY, AND/OR USE OF
<br />GOODS AND/OR SERVICES IN NO CIRCUMSTANCE INCLUDES ANY LIQUIDATED, PENALTY, INCIDENTAL OR
<br />CONSEQUENTIAL DAMAGES OF ANY KIND, NOR EXCEED AN AMOUNT THAT IS UNREASONABLY
<br />DISPROPORTIONATE TO THE TOTAL AMOUNT OF COMPENSATION ACTUALLY PAID TO AQI UNDER THE
<br />AGREEMENT, EXCEPT ONLY IN THE CASE OF DAMAGES ARISING DUE TO AQI’S WILLFUL MISCONDUCT.
<br />
<br />4. Limited Warranty. AQI warrants that the Software and related work (the “Work”) sold under Agreement
<br />will be free from defects in material and workmanship and will, when used in accordance with the
<br />manufacturer’s operating and maintenance instructions, conform to any express written warranty
<br />pertaining to the specific Work purchased. AQI warrants that Work furnished under the Agreement will be
<br />free from defects in workmanship for a period of ninety (90) days from the completion of the Work. Parts
|