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ATTACHMENT 1 - TERMS AND CONDITIONS
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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 expensesRemarkssectionofSchedule. Late payment fees will be
charged as follows: (a) one percent (1 %) per month or
provide a total solution with regard to addressing
concerns
including reasonable attorney's fees & other arbitrationpart
thereof will be charged for any payment that is more than 30 regarding the presence. of convective activity
and/or lightning and their potential impact on the safety
costs).
17. Extraordinary Circumstances. Except for obligationsdayslate: (b) Payment should be made to:
Earth Networks of personnel and /or safeguarding of facilities, whether it of payment, neither Seller nor the Buyer shall be liable for
Dept 0152, PO Box 120152
be of immediate or short term concern. Interpretation
and application of the data, as well as any comparative
nonperformance caused by circumstances beyond their
control, including but not limited to, work stoppages, floods, Dallas, TX75312
2. Inspection and Acceptance. It is Buyer's responsibility to
inspect
analysis and/or prognosis or similar activities done by
any user, are done so solely at the user's risk and have
lightning and all other acts of God.
18. Breach. Either party may terminate this Agreement onandaccepteachunitatthetimeofdelivery. Failure of
Buyer to inspect and accept the unit at that time not directly or indirectly been implied, condoned or breach by the other party of any material tern or conditionwaives
Buyer's rights to inspection and acceptance as a term of the
recommended by Seller, and /or its data suppliers,
10. Liability. Buyer and subsequent users of hardware hereof 10 days after written notice is given to the breaching
party by the non - breaching party if such breach is not cured. contract. However, any actions under this clause shall not be
deemed a waiver of any warranty contained herein. and software agree to waive any liability of Seller for
damage caused by hardware and software installation
19. Order Fulfillment. If this is a multiple unit order
3. Web Services. As part of this package purchase, Seller and operation on any user premises. and/or includes promotional goods, credits, services, and the
Buyer does not fully complete the terms of the OrderagreestoprovidetoBuyer: (1) complete access to the web
service specified on the Schedule; (2) Provide adequate
11. Limitations of Liability. Except for damages
caused by Seller's willful misconduct, recklessness,
agreement, Seller reserves the right to re -bill at standard
bandwidth and server capacity; (3) Provide toll -free technical or
gross negligence, the parties agree that to the extent
prices or to retrieve the promotional items, unless the Buyer
reconciles by acquiring another Earth Networkssupport. The above services will be provided for as long as
Seller maintains support for the applicable web service.
permitted by applicable law, Seller limits or disclaims
liability related to the manufacture, delivery,
product
eligible for such promotional items /discounts.
20.
4. Term and Termination. The web services shall have an
or use of
the equipment, the software and/or supplies used in
Patent Indemnity. Seller will defend the Buyer from,
and pay for ultimate judgment or liability for infringementinitialtermasspecifiedontheSchedule. Unless otherwise
specified on the Schedule, the web services subscription shall
connection with the equipment or the provision of
services for the equipment, as follows: (a) For direct in the United States by equipment or operating system
Software ")
automatically renew for successive 12 month terms, unless damages, Seller liability is limited to the amounts paid
software ( of any patent, trademark, trade secret,
protected semiconductor chip mask work, or copyright ifterminatedbyeitherpartywithatleast30dayswrittennotice
prior to the expiration of the then current term. by Buyer for the equipment, software, supplies or Buyer promptly notifies Seller in writing of any alleged
5. Dispute. The parties agrees that any dispute, other than those
services giving rise to, or which are the subject of the
claim, whether such claim alleges breach of contract, or
infringement, allows Seller to defend, and cooperates with
Seller. Seller is not responsible for any non -Earth Networksrelatingtopayment, due and owing from Buyer to Seller, arising
out of or relating to this Agreement, shall be subject to binding tortious conduct including but not limited to negligence litigation expenses or settlements unless Earth Networks
arbitration pursuant to the Commercial Arbitration Rules of the
or any other theory; (b) Seller disclaims liability forindirect, incidental, special, or consequential damages agrees to them in writing. Seller is not liable for anyinfringementduetoequipmentorsoftwarebeingAmericanArbitrationAssociation. The parties shall jointly
request that an Arbiter be appointed by the Alternative Dispute
including but not limited to, loss of use, revenue, or made or
modified by the Buyer or Buyer requested specification or
Resolution Administrator for the Circuit Court for Montgomery
profit) whether such claim alleges breach of contract,
tortious conduct including but not limited to negligence,
designs, or being used or sold in combination with
equipment, software, or supplies not provided by Seller. County, Maryland, to serve as the final arbiter of any dispute.
Any award of the Arbiter shall be enrollable in the applicable
or any other theory.
12. Data Rights. Seller retains all rights to data IMPORTANT: SELLER MAKES NO OTHER EXPRESS
OR IMPLIEDcourtforenforcement. Both Buyer and Seller agree that the
and/or
video images (hereinafter "data ") generated by the Earth
WARRANTY OF NON - INFRINGEMENT
AND HAS NO OTHER LIABILITYfindingofthearbitratorisbindingandnootherremedy,
including legal rernedies, is
Networks system(s). Seller grants Buyer a limited
FOR
INFRINGEMENT OR ANY DAMAGES THEREFROM. permitted.
6. Warranty. The Seller warrants the hardware and software
license for use of such data, in connection with Buyer's
internal business /educational purposes, but for To avoid an infringement (even if not alleged) Seller may, at
its
purchased by the Buyer against defects in workmanship and
no other
purpose. Seller has exclusive rights for resale or to
option, at no charge to Buyer, obtain a license to use,
modify, or substitute an equivalent item for the infringingmaterialsforaperiodofone (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
repair or replace defective items. Buyer is responsible to
and users of hardware and software under this contract
cannot provide access to third without the
21. Purchase Orders. Except for identifying goods,
return of defective items to Seller by means specified by the
parties
express written consent of Seller. Requests for access
services or software ordered, prices and quantities, the terms
and conditions contained or referenced in BuyerSeller. The Buyer shall bear all shipping expenses. Packing of
defective items for return is responsibility of Buyer. Damage
must be in writing to the Seller at the Seller's place of
business. Seller grants Buyer a royalty free license
purchase
order or other ordering documents shall be of no force or
due to natural causes (storms, lightning, flying debris, etc.) is
not covered by this warranty. Damage resulting from Buyer
to
use and disseminate data generated by the Buyer's Earth
Networks system for educational
effect.
22. Necessary Maintenance by Earth Networks. Buyer
negligence or mishandling of hardware and software is not
purposes, save and
except that Buyer is expressly prohibited from
will provide, upon reasonable notice by Seller, access to the
system(s) for thecoveredbythiswarranty.
7. Alterations and Attachments. If Buyer makes alterations
disseminating data to media outlets (such as TV
stations, cable channels, radio stations, newspapers,
purpose of supplying necessary
maintenance and /or the installation of additional sensor
or attaches a device or any other item to the Earth Networks
unit as sold and installed, the warranty is voided and Seller
and
magazines). Buyer is expressly prohibited from
disseminating data from any other Earth Networks
equipment.
23. Severability /Assignability. If any provision of this
has no further obligation under the warranty. system.
Agreement shall be held to be invalid or unenforceable, the
8. Disclaimer of Implied Warranties. EXCEPT AS
PROVIDED ABOVE, THE WEB SERVICES AND DATA
13. Access To Communication Line. Buyer agrees to remainder of this Agreement shall not be affected therebyandshallremainvalidandenforceable. Neither party may
DISPLAYED THEREIN ARE PROVIDED ON AN "AS IS"
AS
connect, at Buyer expense, the Earth Networks unit(s) to
a dedicated, full -time Internet connection. Buyer further assign this Agreement or any of its rights and obligations
hereunder to any person, firm or corporation, without theANDAVAILABALE" BASIS. EXCEPT AS
PROVIDED IN SECTION 6 ABOVE, SELLER MAKES NO -
agrees to maintain the Earth Networks system in an
operational mode at all times and to Seller
prior written consent of the other, which consent shall not be
WARRANTY, EXPRESS OR IMPLIED, TO BUYER, OR
permit
authorized outside access to system data through the unreasonably withheld, provided however that either party
may assign this Agreement to a successor in interest as a
TO ANY AUTHORIZED USER OR THIRD PARTY, telecommunication line. Telecommunication line result of 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 itsACCURACY, PERFORMANCE, COMPATABILITY, to follow all procedures outlined in the Operations terms or conditions by any oral Agreement orMERCHANTABILITY, AND FITNESS FOR A Manual to ensure system access is maintained. representation, but only by an instrument in writing of evenPARTICULARPURPOSE. BUYER ACKNOWLEDGES 14. Non - Waiver of Rights. The failure of Buyer or or subsequent date thereto, properly executed by both theTHATSELLERISNOTRESPONSIBLEFORTHESellertoinsistuponstrictperformanceoftheternsandSellerandBuyer.
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 terms entire agreement between Seller and Buyer respecting theBUYER'S OR ANY AUTHORIZED USER'S RELIANCE or conditions at any time thereafter. subject matter i ee nt.
ON ANY SUCH INFORMATION OR DATA UNDER ANY 15. Governing Law. This Agreement shall be
CIRCUMSTANCES. governed by the laws of the State of Maryland.
9. Lightning Disclaimer. Experience has shown that the 16. Attorney's Fees /Costs. In any action by a party
resolution, timeliness, and format in which lightning data are enforce its rights hereunder, the non- prevailin arty Customer Signatur.VandAbate
CONFIDENTIAL
EN.Cont.' pprma1.Fl 2
ADDENDUM TO AGREEMENT BETWEEN EARTH NETWORKS
AND
EAGLE COUNTY, COLORADO
This Addendum is intended to supplement the Earth Networks Professional Agreement
for Order #43709 between Earth Networks ( "Contractor ") and Eagle County, Colorado
the "County") dated July 2013 (the "Agreement") and shall be binding in all
respects as if included in said Agreement.
1. TABOR. The County is a governmental entity and all obligations beyond the
current fiscal year are subject to funds being budgeted and appropriated.
Notwithstanding anything to the contrary contained in this Agreement, no payment shall
be made for any services provided after December 31 of any year without prior approval
of a budget adopted in accordance with the provisions of Title 30, Article 25, C.R.S.,
Title 32, Article 1, C.R.S., and the Local Government Budget Law (Title 29, Article 1,
Part 1, C.R.S.).
2. Tax Exempt. Contractor acknowledges that the County is a tax exempt entity.
Dated this day of July, 2013.
COUNTY OF EAGLE, STATE OF
COLORADO by and through its County
Manager
By
Keith ontag, County nager
EARTH NETWORKS
By. ra SM&
Its: Homeland security Specialist
