Eart Networks Professional AgreementE
Order #: 45021
_ EARTH NETWORKS PROFESSIONAL AGREEMENT
Av •�� p 12410 Milestone Center Drive,
NoY�4�` �/�E� a® �� Suite 300, Germantown, MD 20876 n e m
et YiP�®r s- EARTH NETWORKS dba WEA THERBUG e }k e®the�`Bu
herein referred to as "Earth Networks"
Taking the Pulse of the Planet' by Earth Networks-
0 0 • •
Business Name: City of Salina Parks & Recreation Business 300 W Ash St
avis Scheele Address: Salina, KS
Contact Name:j4785
67401-2335
Contact Phone: 309-5765 Contact Fax:
o • • e o o oo
Business Name: Business
Contact Name: Address:
Contact Phone: Contact Fax:
e e • o
POC: Stuart Hershon I Email Address: I shershon@weather8ug.com
Contact Phone: 800 544-4429 ext 4080 Contact Fax: 301 258-5210
0 0 0• eIt VOW
Product Name
Quantity
Total Price
WeatherBug Outdoor Alerting Package:
1
$8,500.00
o WeatherBug Outdoor Alerting System
1
Horn/Strobe Unit
o WeatherBug Lighting Alert Feed &
1
StreamerRT Visualization
o Installation Services
1
Initial Term of Contract:
1 year on Lx Alerting Subscription
Sub Total:
$8,500.00
Quote Valid through_12/31/13
Grand Total:
$8,500.00
BN.Cont.ApprovaI.F209!13r2013 Page I Customer #:
Order #: 45021
Remarks:
The buyer agrees to payment terms of Net 30 unless otherwise. documented. Late payment fees will be charged as one percent (1 %) per month or part
thereof will be charged for any payment that is more than 30 days late. StreamerRT and alert feeds provided at no charge in Year 1. The annual fee
for these services following year one shall be $1,500/year.
Installation and/or maintenance costs quoted above are valid for standard installations only. Any installation or maintenance work that requires
non-standard equipment, materials, or regulatory expense may be subject to an additional charge. Furthermore, customer is responsible for
providing all communication and electrical infrastructure. This quotation identifies the quantity of OAS units estimated for adequate coverage
and has been agreed to by both parties as per (name and date of summary document). If additional units are required or desired after
installation, they can be added for $8,500 per unit installed.
Please allow six to eight weeks for delivery of hardware.
The parties agree to be bound by the Earth Networks terms and conditions, as modified by the Addendum executed and delivered to the buyer by Earth
Networks.
CU OMER:
By:
Name: Dion Louthan
Title: Director of Parks & Recreation
Date:
3/6/2014
EARTH NETWORKS �
By: s ft r=sh
/,
en
Name: H„me1 _na : ty Spee4alist
Title:
Date:
Please fax all pages of the signed agreement directly to Earth Networks at (301) 258.5210
EN.Coni.ApprovaL1`20 9/13/2013 Page 2 Customer M
Ear Jp�h
NVifor S_
SWeatherBug'
ATTACHMENT 1 - TERMS AND CONDITIONS
Taking the Put" of tha Planet'
1. Payment. The Buyer agrees to payment terms per
presented within various displays and products, does not
shall pay the prevailing party's costs and expenses
Remarks section of Schedule. Late payment lees will be
provide a total solution with regard to addressing
(including reasonable attorney's fees & other arbitration
charged as follows: (a) one percent (1%) per month or part
concerns regarding the presence of convective activity
costs).
thereof will be charged for any payment that is more than 30
and/or lightning and their potential impact on the safety
17. Extraordinary Circumstances. Except for obligations
days late: (b) Payment should be made to:
of personnel and/or safeguarding of facilities, whether it
of payment, neither Seller nor the Buyer shall be liable for
Earth Networks
be of immediate or short tern concern. Interpretation
nonperformance caused by circumstances beyond their
Dept 0152, PO Box 120152
and application of the data, as well as any comparative
control, including but not limited to, work stoppages, floods,
Dallas, TX75312
analysis and,or prognosis or similar activities done by
lightning and all other acts of God.
2. Inspection and Acceptance. It is Buyer's responsibility to
any user, are done so solely at the user's risk and have
18. Breach. Either party may terminate this Agreement on
inspect and accept each unit at the time of delivery. Failure of
not directly or indirectly been implied, condoned or
breach by the other party of any material term or condition
Buyer to inspect and accept the unit at that time waives
recommended by Seller, and/or its data suppliers.
hereof 10 days after written notice is given to the breaching
Buyer's rights to inspection and acceptance as a term of the
10. Liability. Buyer and subsequent users of hardware
party by the non-breaching parry ifsuch breach is not cured.
contract. However, any actions under this clause shall not be
and software agree to waive" any liability of Seller for
19. Order Fulfillment If this is a. multiple unit order
deemed a waiver of any warrant- contained herein.
damage caused by hardware and software installation
and/or includes promotional goods, credits, services, and the
3. Web Services. As part of this package purchase, Seller
and operation on any user premises.
Buyer does not fully complete the terms of the Order
agrees to provide to Buyer: (1) complete access to the web
11. Limitations of Liability. Except for damages
agreement, Seller reserves the right to re-bill at standard
service specified on the Schedule; (2) Provide adequate
caused by Seller's willful misconduct; recklessness, or
prices or -to retrieve the promotional items, unless the Buyer
bandwidth and server capacity; (3) Provide toll-free technical
gross negligence, the parties agree that to the extent
reconciles by acquiring another Earth Networks product
support. The above services will be provided for as long as
permitted by applicable law, Seller limits or disclaims
eligible for such promotional items/discounts.
Sella maintains support for the applicable web service.
liability related to the manufacture, delivery, or use of
20. Patent Indemnity. Seller will defend the Buyer from,
4. Term and Termination. The web services shall have an
the equipment, the software and/or supplies used in
and pay for ultimate judgment or liability for infringement
initial tenn as specified on the Schedule. Unless otherwise
connection with the equipment or the provision of
in the United States by equipment or operating system
specified on the Schedule, the web services subscription shall
services for the equipment, as follows: (a) For direct
software ("Software") of any patent, trademark, trade secret,
automatically renew for successive 12 month terms, unless
damages, Seller liability is limited to the amounts paid
protected semiconductor chip mask work, or copyright if
terminated by either party with at least 30 days written notice
by Buyer for the equipment, software, supplies or
Buyer promptly notifies Seller in writing of any alleged
prior to the expiration of the then current term.
services giving rise to, or which are the subject of the
infringement, allows Seller to defend, and cooperates with
5. Dispute. The paries agrees that any dispute, other than those
claim, whether such claim alleges breach of contract, or
Seller. Seller is not responsible for any non-Earth Networks
relating to payment, due and owing from Buyer to Seller, arising
tortious conduct including but not limited to negligence
litigation expenses or settlements unless Earth Networks
out of or relating to this Agreement, shall be subject to binding
or any other theory; (b) Seller disclaims liability for
agrees to thein in writing. Seller is not liable for any
arbitration pursuant to the Commercial Arbitration Rules of the
indirect, incidental, special, or consequential damages
infringement due to equipment or software being made or
American Arbitration Association. The parties shall jointly
(including but not limited to, loss of use, revenue, or
modified by the Buyer or Buyer requested specification or
request that an Arbiter be appointed by the Alternative Dispute
profit) whether such claim alleges breach of contract,
designs, or being used or sold in combination with
Resolution Administrator for the Circuit Court for Montgomery
tortious conduct including but not limited to negligence,
equipment, software, or supplies not provided by Seller.
County, Maryland, to serve as the final arbiter of any dispute,
or any other theory.
IMPORTANT: SELLER MAKES NO OTHER EXPRESS
Any award of the Arbiter shall be enrollable in the applicable
12. Data Rights. Seller retains all rights to data and/or
OR IMPLIED WARRANTY OF NON-INFRINGEMENT
court for enforcement. Both Buyer and Seller agree that the
video images (hereinafter "data") generated by the Earth
AND HAS NO OTHER LIABILITY FOR
finding of the arbitrator is binding and no other remedy,
Networks system(s). Seller grants Buyer a limited
INFRINGEMENT OR ANY DAMAGES THEREFROM.
including legal remedies, is permitted.
license for use of such data, in connection with Buyer's
To avoid an infringement (even if not alleged) Seller may, at
6. Warranty. The Seller warrants the hardware and software
internal business/educational purposes, but for no other
its option, at no charge to Buyer, obtain a license to use,
purchased by the Buyer against defects in workmanship and
purpose. Seller has exclusive Fights for resale or to
modify, or substitute an equivalent item for the infringing
materials for a period of one (1) year from date of delivery
otherwise use data from the installed system(s). Buyer
equipment or software.
under this contract. The Seller shall, at its sole option, either
and users of hardware and software trader this contract
21. Purchase Orders. Except for identifying goods,
repair or replace defective items. Buyer is responsible to
cannot provide access to third parties without the
services or software ordered, prices and quantities, the terms
return of defective items to Seller by means specified by the
express written consent of Seller. Requests for access
and conditions contained or referenced in Buyer purchase
Seller. The Buyer shall bear all shipping expenses. Packing of
must be in writing to the Seller at the Seller's place of
order or other ordering documents shall be of no force or
defective items for return is responsibility of Buyer. Damage
business. Seller grants Buyer a royalty free license to
effect.
due to natural causes (storms, lightning, flying debris, etc.) is
use and disseminate data generated by the Buyer's Earth
22. Necessary Maintenance by Earth Networks. Buyer
not covered by this warranty. Damage resulting from Buyer
Networks system for educational purposes, save and
will provide, upon reasonable notice by Seller, access to the
negligence or mishandling of hardware and software is not
except that Buyer is expressly prohibited from
.system(s) for the purpose of supplying necessary
covered by this warranty.
disseminating data to media outlets (such as TV
maintenance and/or ithe installation of additional sensor
7. Alterations and Attachments. If Buyer makes alterations
stations, cable channels, radio stations, newspapers, and
equipment.
or attaches a device or any other item to the Earth Networks
magazines). Buyer is expressly prohibited from
23. Severability/Assignability. If any provision of this
unit as sold and installed, the warranty is voided and Seller
disseminating data from any other .Earth Networks
Agreement shall be held to be invalid or unenforceable, the
has no further obligation under the warranty.
system.
remainder of this Agreement shall not be affected thereby
8. Disclaimer of Implied Warranties. EXCEPT AS
13. Access To Communication Line. Buyer agrees to
and shall remain valid and enforceable. Neither party may
PROVIDED ABOVE, THE WEB SERVICES AND DATA
connect, at Buyer expense, the Earth Networks unit(s) to
assign this Agreement or any of its rights and obligations
DISPLAYED THEREIN ARE PROVIDED ON AN "AS IS"
a dedicated, full-time Internet connection. Buyer further
hereunder to any person, firm or, corporation, without the
AND "AS AVAILABALE" BASIS. EXCEPT AS
agrees to maintain the Earth Networks system in an
prior written consent of the other, which consent shall not be
PROVIDED IN SECTION 6 ABOVE, SELLER MAKES NO
operational mode at all times and to permit Seller
unreasonably withheld, provided however that either party
WARRANTY, EXPRESS OR IMPLIED, TO BUYER, OR
authorized outside access to system data through the
may assign this Agreement to a successor in interest as a
TO ANY AUTHORIZED USER OR THIRD PARTY,
telecommunication line. Telecommunication line
result of a sale of all or substantially all of its stock or assets.
INCLUDING ANY WARRANTIES OF QUALITY,
expense is solely the obligation of Buyer. Buyer agrees
24. Modification. This contract shall not be varied in its
ACCURACY, PERFORMANCE, COMPATABILITY,
to follow all procedures outlined in the Operations
terns or conditions by any oral Agreement or
MERCHANTABILITY, AND FITNESS FOR A
Manual to ensure system access is maintained.
representation, but only by an instrument in writing of even
PARTICULAR PURPOSE. BUYER ACKNOWLEDGES
14. Non-Waiver of Rights. The failure of Buyer or
or subsequent date thereto, properly executed by both the
THAT SELLER IS NOT RESPONSIBLE FOR THE
Seller to insist upon strict performance of the terms and
Seller and Buyer.
ACCURACY OF ANY INFORMATION OR DATA
conditions of this Contract or to exercise any rights or
25. Entire Agreement. The terms and conditions contained
CONTAINED IN THE SERVICES, AND SELLER SHALL
remedies, shall not be construed as a waiver or its rights
or referenced in this Order Agreement are the complete and
NOT BE LIABLE FOR ANY LOSSES RESULTING FROM
to assert any of same rights or to rely on any such terns
entire agreement between Seller and Buyer respecting the
BUYER'S OR ANY AUTHORIZED USER'S RELIANCE
or conditions at any time thereafter. subject matte of i Agreement.
ON ANY SUCH INFORMATION OR DATA UNDER ANY
15. Governing Law. This Agreement shall be
governed by the laws of the State of Maryland.
CIRCUMSTANCES.
9. Lightning Disclaimer. Experience has shown that the
16. Attorney's Fees/Costs In any action by a party to
enforce its rights hereunder, the non-prevailing party
Customer Signatu a and Date
resolution, timeliness, and format in which lightning date arc
CONFIDENTIAL
EN.Cont. Approval. F 12/3!2012
Addendum to
Earth Networks - WeatherBug
Terms and Conditions
This Addendum shall be attached to and made a part of Earth Networks' Terms and
Conditions ("Terms"), designated as "Attachment 1" to the Professional Agreement entered into
for Order No. 45021, between Earth Networks, Inc. ("Seller") and the City of Salina, Kansas
("Buyer"). Notwithstanding any provisions of the Terms, the following provisions, conditions,
and limitations shall be controlling and shall modify and amend the Terms applicable to the
Agreement between the parties. All capitalized terms used in this Addendum shall have the
meanings given to them in the Terms.
Dispute. Section 5, titled "Dispute," is amended and restated as follows:
This Agreement and its validity, construction and performance shall be governed by
the laws of'Kansas. In the event of any legal action to enforce or interpret this
Agreement, the sole and exclusive venue shall be in the Saline County, Kansas
District Court.
2. Limitations of Liability. Section 11, titled "Limitations of Liability," is deleted in
its entirety, and replaced by the following:
Limitations of Liability.
Indirect Damages - Except for damages caused by Seller's willful misconduct,
recklessness, or gross negligence, the parties agree that to the extent permitted by
applicable law, Seller limits or disclaims liability related to the manufacture,
delivery, or use of the equipment, the software and/or supplies used in connection
with the equipment or the provision of services for the equipment for indirect,
incidental, special, or consequential damages (including but -not limited to, loss of
use, revenue, or profit) whether such claim alleges breach of contract, tortious
conduct including but not limited to negligence, or any other theory.
Direct Damages - For direct damages, Seller's liability is limited to itsavailable
insurance coverage or $100,000, whichever is greater, whether such claim alleges
breach of contract, or tortious conduct including but not limited to negligence. or
any other theory.
3. Equal Opportunity. A new section titled "Equal Opportunity" shall be added to
the Terms, as follows:
(a) In conformity with the Kansas act against discrimination and Chapter 13 of the Salina
Code, Seller and its subcontractors, if any, agree that:
(1) Seller shall observe the' provisions of the Kansas act against discrimination and
Chapter 13 of the Salina Code and in doing so shall not discriminate against any
person in the performance of work under this contract because of race, sex, religion,
age, color, national origin, ancestry or disability;
(2) Seller shall include in all solicitations, or advertisements for employees, the phrase
"equal opportunity employer," or a similar phrase to be approved by the city's human
relations director;
(3) If Seller fails to comply with the manner in which Seller reports to the Kansas human
rights commission in accordance with the provisions of K.S,A. 44-1031 and
amendments thereto, Seller shall be deemed to have breached this contract and it may
be canceled, terminated or suspended, in whole or in part, by Buyer;
(4) If Seller is found guilty of a violation of Chapter 13 of the Salina Code or the Kansas
act against discrimination under a decision or order of the Salina human relations
commission or the Kansas human rights commission which has become final, Seller
shall be deemed to have breached this contract and it may be canceled, terminated or
suspended, in whole or in part, by Buyer;
(5) Seller shall not discriminate against any employee or applicant for employment in the
performance of this contract because of race, sex, religion, age, color, national origin,
ancestry or disability; and
(6) Seller shall include similar provisions in any subcontract under this contract.
(b) The provisions of this section shall not apply to this contract if Seller:
(1) Employs fewer than four employees during the term of this contract; or
(2) Contracts with Buyer for cumulatively $5,000 or less during Buyer's calendar fiscal
year.
EARTH NETWORKS, INC.
By:
� �T-, /—
Name: ' 4A) PCZ 1 0 '(5D A)4,:-57C—
Title: V. f� r � % •, Cf)U10 &—C
2