HomeMy WebLinkAboutContractAGREEMENT FOR LINKO FOG ACP SOFTWARE
(SOFTWARE AS A SERVICES AGREEMENT)
THIS AGREEMENT (“Agreement”), dated for reference purposes only as January 18, 2022, is by
and between the City of Renton (the “City”), a Washington municipal corporation, and Linko
Technology (“Vendor”), a division of Aquatic Informatics ULC, Vancouver, BC, Canada. The City
and the Vendorare referred to collectively in this Agreementas the “Parties.” Once fully executed
by the Parties, this Agreement is effective as of the last date signed by both parties (the “Effective
Date”).
1. Scope of Work: Vendor agrees to provide Linko FOG ACP Software with support and
guided implementation and training as further described in Schedule A – Description of
Service Offerings, which is attached and incorporated herein and may hereinafter be
referred to as the “Work.” Vendor shall provide the Work consistent with the
requirements of the Service LevelAgreement as set forth in Exhibit 1 - Service Agreement,
Schedule C – Support Maintenance and Schedule D – Service Levels.
2. Changes in Scope of Work: The City, without invalidating this Agreement, may order
changes to the Work consisting of additions, deletions or modifications. Any such changes
to the Work shall be ordered by the City in writing, and the Compensation shall be
equitably adjusted consistent with the rates mutually agreed by the Parties.
3.Time of Performance:Vendor shall commence performance of the Agreement within 14
days of the Agreement’s execution.
4. Compensation:
A. Amount. The amount of the Agreement is made up of two parts, “One-Time Costs”
which apply to Phase 1 of the Work, and “Recurring Costs” which apply to Phase 2 of
the Work.
x One-Time Costs. The amount of the One Time Costs for this Agreement shall not
exceed$2,950.00 plus any applicable state and local sales taxes. Costs shall be paid
based upon Workactually performed according to the rate(s) or amounts specified
in Schedule B – Subscription term and Payment Terms.
x Recurring Costs. The amount of the Recurring Costs for the first 3 years shall be
$2,745.00, plus any applicable state and local sales taxes, for the period starting
one year from the Effective Date for a total of 3 years. Recurring Costs are to be
CAG-22-030
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billed annually and after the third year are not to exceed an increase of 3% year
over year unless otherwise agreed by both Parties.
Except as specifically provided herein, the Vendor shall be solely responsible for
payment of any taxes imposed as a result of the performance and payment of this
Agreement. Total amount of the agreement is estimated at $12,415.35 after
applicable state and local sales taxes.
B. Method of Payment. On an monthly or no less than quarterly basis during any year in
which Work is performed, the Vendor shall submit a voucher or invoice in a form
specified by the City, including a description of what Work has been performed, the
name of the personnel performing such Work, and any hourly labor charge rate for
such personnel. The Vendor shall also submit a final bill upon completion of all Work.
Payment shall be made by the City for Workperformed within thirty (30) calendar days
after receipt and approval by the appropriate City representative of the voucher or
invoice. If the Vendor’s performance does not meet the requirements of this
Agreement, the Vendor will correct or modify its performance to comply with the
Agreement. The City may withhold payment for work that does not meet the
requirements of this Agreement.
C. Effect of Payment. Payment for any part of the Work shall not constitute a waiver by
the City of any remedies it may have against the Vendor for failure of the Vendor to
perform the Work or for any breach of this Agreement by the Vendor.
D. Non-Appropriation of Funds. If sufficient funds are not appropriated or allocated for
payment under this Agreement for any future fiscal period, the City shall not be
obligated to make payments for Workor amounts incurred after the end of the current
fiscal period, and this Agreement will terminate upon the completion of all remaining
Work for which funds are allocated. No penalty or expense shall accrue to the City in
the event this provision applies.
5. Termination:
A. The City reserves the right to terminate this Agreement at any time, with or without
cause by giving ten (10) calendar days’ notice to the Vendor in writing. In the event of
such termination or suspension, all finished or unfinished documents, data, studies,
worksheets, models and reports, or other material prepared by the Vendor pursuant
to this Agreement shall be submitted to the City, if any are required as part of the
Work.
B. In the event this Agreement is terminated by the City, the Vendor shall be entitled to
payment for all hours worked to the effective date of termination, less all payments
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previously made. If the Agreement is terminated by the City after partial performance
of Work for which the agreed compensation isa fixed fee, the City shall pay the Vendor
an equitable share of the fixed fee. This provision shall not prevent the City from
seeking any legal remedies it may have for the violation or nonperformance of any of
the provisions of this Agreement and such charges due to the City shall be deducted
from the final payment due the Vendor. No payment shall be made by the City for any
expenses incurred or work done following the effective date of termination unless
authorized in advance in writing by the City.
C. Return of Information. Upon the written request of City, Consultant shall return any
of the City’s Information in a usable format agreed to by the City as defined in Exhibit
1, Section 4 - Service Agreement, Termination.
6. Warranties and Right to Use Work Product: Vendor represents and warrants that Vendor
will perform all Work identified in this Agreement in a professional and workmanlike
manner and in accordance with all reasonable and professional standards and laws.
Vendor further represents and warrants that all final work product created for and
delivered to the City pursuant to this Agreement shall be the original work of the Vendor
and free from any intellectual property encumbrance which would restrict the City from
using the work product. Vendor grants to the City a non-exclusive, perpetual right and
license to use, reproduce, distribute, adapt, modify, and display all final work product
produced pursuant to this Agreement. The City’s or other’s adaptation, modification or
use of the final work products other than for the purposes of this Agreement shall be
without liability to the Vendor. The provisions of this section shall survive the expiration
or termination of this Agreement.
7. Record Maintenance: The Vendor shall maintain accounts and records, which properly
reflect all direct and indirect costs expended and Workprovided in the performance of this
Agreement and retain such records for as long as may be required by applicable
Washington State records retention laws, but in any event no less than six years after the
termination of this Agreement. The Vendor agrees to provide access to and copies of any
records related to this Agreement as required by the City to audit expenditures and
charges and/or to comply with the Washington State Public Records Act (Chapter 42.56
RCW). The provisions of this section shall survive the expiration or termination of this
Agreement.
8. Public Records Compliance: To the full extent the City determines necessary to comply
with the Washington State Public Records Act, Vendor shall make a due diligent search of
all records in its possession or control relating to this Agreement and the Work, including,
but not limited to, e-mail, correspondence, notes, saved telephone messages, recordings,
photos, or drawings and provide them to the City for production. In the event Vendor
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believes said records need to be protected from disclosure, it may, at Vendor’s own
expense, seek judicial protection. Vendor shall indemnify, defend, and hold harmless the
City for all costs, including attorneys’ fees, attendant to any claim or litigation related to a
Public Records Act request for which Vendorhas responsive records and for which Vendor
has withheld records or information contained therein, or not provided them to the City
in a timely manner. Vendorshall produce for distribution any and all records responsive to
the Public Records Act request in a timely manner, unless those records are protected by
court order. The provisions of this section shall survive the expiration or termination of
this Agreement.
9. Independent Contractor Relationship:
A. The Vendor is retained by the City only for the purposes and to the extent set forth in
this Agreement. The nature of the relationship between the Vendorand the City during
the period of the Work shall be that of an independent contractor, not employee. The
Vendor, not the City, shall have the power to control and direct the details, manner or
means of Work. Specifically, but not by means of limitation, the Vendor shall have no
obligation to work any particular hours or particular schedule, unless otherwise
indicated in the Scope of Work or where scheduling of attendance or performance is
mutually arranged due to the nature of the Work. Vendor shall retain the right to
designate the means of performing the Work covered by this agreement, and the
Vendorshall be entitled to employ other workers at such compensation and such other
conditions as it may deem proper, provided, however, that any contract so made by
the Vendor is to be paid by it alone, and that employing such workers, it is acting
individually and not as an agent for the City.
B. The City shall not be responsible for withholding or otherwise deducting federal
income tax or Social Security or contributing to the State Industrial Insurance Program,
or otherwise assuming the duties of an employer with respect to Vendor or any
employee of the Vendor.
C. If the Vendor is a sole proprietorship or if this Agreement is with an individual, the
Vendor agrees to notify the City and complete any required form if the Vendor retired
under a State of Washington retirement system and agrees to indemnify any losses
the City may sustain through the Vendor’s failure to do so.
10. Hold Harmless: The Vendor agrees to release, indemnify, defend, and hold harmless the
City, elected officials, employees, officers, representatives, and volunteers from any and
all claims, demands, actions, suits, causes of action, arbitrations, mediations, proceedings,
judgments, awards, injuries, damages, liabilities, taxes, losses, fines, fees, penalties,
expenses, attorney’s or attorneys’ fees, costs, and/or litigation expenses to or by any and
all persons or entities, arising from, resulting from, or related to the negligent acts, errors
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or omissions of the Vendor in its performance of this Agreement or a breach of this
Agreement by Vendor, except for that portion of the claims caused by the City’s
negligence.
It is further specifically and expressly understood that the indemnification provided in this
Agreement constitute Vendor’s waiver of immunity under the Industrial Insurance Act,
RCW Title 51, solely for the purposes of this indemnification. The Parties have mutually
negotiated and agreed to this waiver. The provisions of this section shall survive the
expiration or termination of this Agreement.
11. Gifts and Conflicts: The City’s Code of Ethics and Washington State law prohibit City
employees from soliciting, accepting, or receiving any gift, gratuity or favor from any
person, firm or corporation involved in a contract or transaction. To ensure compliance
with the City’s Code of Ethics and state law, the Vendor shall not give a gift of any kind to
City employees or officials. Vendor also confirms that Vendor does not have a business
interest or a close family relationship with any City officer or employee who was, is, or will
be involved in selecting the Vendor, negotiating or administering this Agreement, or
evaluating the Vendor’s performance of the Work.
12. City of Renton Business License: Unless exempted by the Renton Municipal Code, Vendor
shall obtain a City of Renton Business License prior to performing any Work and maintain
the business license in good standing throughout the term of this agreement with the City.
Information regarding acquiring a city business license can be found at:
https://www.rentonwa.gov/Tax
Information regarding State business licensing requirements can be found at:
https://dor.wa.gov/doing-business/register-my-business
13. Insurance: Vendor shall secure and maintain:
A. Commercial general liability insurance in the minimum amounts of $1,000,000 for each
occurrence/$2,000,000 aggregate for the Term of this Agreement.
B. In the event that Work delivered pursuant to this Agreement either directly or
indirectly involve or require Professional Services, Professional Liability/ Errors and
Omissions coverage shall be provided with minimum limits of $1,000,000 per
occurrence. "Professional Services", for the purpose of this section, shall mean any
Workprovided by a licensed professional or Workthat requiresa professional standard
of care.
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C. Workers’ Compensation Coverage, as required by the Industrial Insurance laws of the
State of Washington, shall also be secured.
D. Commercial Automobile Liability for owned, leased, hired or non-owned, leased, hired
or non-owned, with minimum limits of $1,000,000 per occurrence combined single
limit, if there will be any use of Vendor’s vehicles on the City’s Premises by or on behalf
of the City, beyond normal commutes.
E. Cyber Liability Insurance is required, with limits not less than $2,000,000 per
occurrence or claim, with $2,000,000 aggregate minimum. Coverage shall be
sufficiently broad to respond to the duties and obligations as is undertaken by Vendor
in this agreement and shall include, but not be limited to, coverage, including defense,
for the following losses or services: claims involving infringement of intellectual
property, infringement of copyright, trademark, trade dress, invasion of privacy
violations, information theft, damage to or destruction of electronic information,
release of private information, alteration of electronic information, extortion and
network security, coverage for unauthorized access and use, failure of security, breach
of confidential information, or privacy perils. The policy shall provide coverage for
breach response costs, to include but not limited to crisis management services, credit
monitoring, public relations, legal service advice, notification of affected parties,
independent information security forensics firm, and costs to re-secure, re-create and
restore data or systems as well as regulatory fines and penalties with limits sufficient
to respond to these obligations.
F. Vendor shall name the City as an Additional Insured on its commercial general liability
policy on a non-contributory primary basis. The City’s insurance policies shall not be a
source for payment of any Vendor liability, nor shall the maintenance of any insurance
required by this Agreementbe construed to limit the liability of Vendorto the coverage
provided by such insurance or otherwise limit the City’s recourse to any remedy
available at law or in equity. Additional Insured requirements do not apply to Cyber
Liability nor Professional Liability insurance, if applicable.
G. Subject to the City’s review and acceptance, a certificate of insurance showing the
proper endorsements, shall be delivered to the City before performing the Work.
H. Vendor shall provide the City with written notice of any policy cancellation, within two
(2) business days of their receipt of such notice.
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14. Safeguarding of Personal Information; Intellectual Property:
A. Personal Information: Vendor shall not use or disclose Personal Information, as
defined in chapter 19.255 RCW, in any manner that would constitute a violation of
federal law or applicable provisions of Washington State law. Vendoragrees to comply
with all federal and state laws and regulations, as currently enacted or revised,
regarding data security and electronic data interchange of Personal Information.
Vendor shall ensure its directors, officers, employees, subcontractors or agents use
Personal Information solely for the purposes of accomplishing the services set forth in
the Agreement.
Vendor shall protect Personal Information collected, used, or acquired in connection
with the Agreement, against unauthorized use, disclosure, modification or loss.
Vendor and its sub-providers agree not to release, divulge, publish, transfer, sell or
otherwise make Personal Information known to unauthorized persons without the
express written consent of City or as otherwise authorized by law.
Vendoragrees to implement physical, electronic, and managerial policies, procedures,
and safeguards to prevent unauthorized access, use, or disclosure of Personal
Information.
Vendorshall make the Personal Information available to amend as directed by Cityand
incorporate any amendments into all the copies maintained by the Vendor or its
subcontractors. Vendor shall certify its return or destruction upon expiration or
termination of the Agreement and the Vendor shall retain no copies. If Vendor and
City mutually determine that return or destruction is not feasible, the Vendorshall not
use the Personal Information in a manner other than those permitted or authorized by
state and federal laws.
Vendor shall notify City in writing immediately upon becoming aware of any
unauthorized access, use or disclosure of Personal Information. Vendor shall take
necessary steps to mitigate the harmful effects of such use or disclosure. Vendor is
financially responsible for notification of any unauthorized access, use or disclosure.
The details of the notification must be approved by City.
Any breach of this clause may result in termination of the Agreement and the demand
for return of all Personal Information.
B. Intellectual Property: Each Party retains all right, title, and interest under applicable
contractual, copyright and related laws to their respective Information, including the
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right to use such information for all purposes permissible by applicable laws, rules, and
regulations.
15. Delays: Vendor is not responsible for delays caused by factors beyond the Vendor’s
reasonable control. When such delays beyond the Vendor’s reasonable control occur, the
City agrees the Vendoris not responsible for damages, nor shall the Vendor be deemed to
be in default of the Agreement.
16. Successors and Assigns: Neither the City nor the Vendorshall assign, transfer or encumber
any rights, duties or interests accruing from this Agreement without the written consent
of the other.
17. Notices: Any notice required under this Agreement will be in writing, addressed to the
appropriate party at the address which appears below (as modified in writing from time
to time by such party), and given personally, by registered or certified mail, return receipt
requested, or by nationally recognized overnight courier service. Time period for notices
shall be deemed to have commenced upon the date of receipt will be deemed to have
commenced on the first business day following transmission. Email and telephone may be
used for purposes of administering the Agreement, but should not be used to give any
formal notice required by the Agreement.
CITY OF RENTON
Caden Nguyen
1055 South Grady Way
Renton, WA 98057
Phone: (425) 430-6885
Email: cnguyen@rentonwa.gov
Email: CityClerk@rentonwa.gov
VENDOR
Everett Adams / Account Executive
1999 Broadway͕Suite 830
ĞŶǀĞƌ͕KϴϬϮϬϮ
Phone: 303-815-0912
Email:Everett.adams@aquaticinformatics.com
18. Discrimination Prohibited: Except to the extent permitted by a bona fide occupational
qualification, the Vendor agrees as follows:
A. Vendor, and Vendor’s agents, employees, representatives, and volunteers with regard
to the Work performed or to be performed under this Agreement, shall not
discriminate on the basis of race, color, sex, religion, nationality, creed, marital status,
sexual orientation or preference, age (except minimum age and retirement
provisions), honorably discharged veteran or military status, or the presence of any
sensory, mental or physical handicap, unless based upon a bona fide occupational
qualification in relationship to hiring and employment, in employment or application
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for employment, the administration of the delivery of Work or any other benefits
under this Agreement, or procurement of materials or supplies.
B. The Vendorwill take affirmative action to insurethat applicants are employed and that
employees are treated during employment without regard to their race, creed, color,
national origin, sex, age, sexual orientation, physical, sensory or mental handicaps, or
marital status. Such action shall include, but not be limited to the following
employment, upgrading, demotion or transfer, recruitment or recruitment
advertising, layoff or termination, rates of pay or other forms of compensation and
selection for training.
C. If the Vendor fails to comply with any of this Agreement’s non-discrimination
provisions, the City shall have the right, at its option, to cancel the Agreementin whole
or in part.
D. The Vendor is responsible to be aware of and in compliance with all federal, state and
local laws and regulations that may affect the satisfactory completion of the project,
which includes but is not limited to fair labor laws, worker's compensation, and Title
VI of the Federal Civil Rights Act of 1964, and will comply with City of Renton Council
Resolution Number 4085.
19. Miscellaneous:The parties hereby acknowledge:
A. The City is not responsible to train or provide training for Vendor.
B. Vendorwill not be reimbursed for job related expensesexcept to the extent specifically
agreed within the attached exhibits.
C. Vendor shall furnish all tools and/or materials necessary to perform the Work except
to the extent specifically agreed within the attached exhibits.
D. In the event special training, licensing, or certification is required for Vendorto provide
Work he/she will acquire or maintain such at his/her own expense and, if Vendor
employs, sub-contracts, or otherwise assigns the responsibility to perform the Work,
said employee/sub-contractor/assignee will acquire and or maintain such training,
licensing, or certification.
E. This is a non-exclusive agreement and Vendor is free to provide his/her Work to other
entities, so long as there is no interruption or interference with the provision of Work
called for in this Agreement.
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F. Vendor is responsible for his/her own insurance, including, but not limited to health
insurance.
G. Vendoris responsible for his/her own Worker’s Compensation coverage as well as that
for any persons employed by the Vendor.
20. Other Provisions:
A. Approval Authority. Each individual executing this Agreementon behalf of the City and
Vendor represents and warrants that such individuals are duly authorized to execute
and deliver this Agreement on behalf of the City or Vendor.
B. General Administration and Management. The City’s project manager is Caden
Nguyen, Sr. Systems Analyst, cnguyen@rentonwa.gov. Inproviding Work, Vendorshall
coordinate with the City’s contract manager or his/her designee.
C. Amendment and Modification. This Agreement may be amended only by an
instrument in writing, duly executed by both Parties.
D. Conflicts. In the event of any inconsistencies between Vendor proposals and this
Agreement, the terms of this Agreementshall prevail. Any exhibits/attachments to this
Agreement are incorporated by reference only to the extent of the purpose for which
they are referenced within this Agreement. To the extent a Vendor prepared exhibit
conflicts with the terms in the body of this Agreement or contains terms that are
extraneous to the purpose for which it is referenced, the terms in the body of this
Agreement shall prevail and the extraneous terms shall not be incorporated herein.
E. Governing Law. This Agreement shall be made in and shall be governed by and
interpreted in accordance with the laws of the State of Washington and the City of
Renton. Vendor and all of the Vendor’s employees shall perform the Work in
accordance with all applicable federal, state, county and city laws, codes and
ordinances.
F. Joint Drafting Effort. This Agreement shall be considered for all purposes as prepared
by the joint efforts of the Parties and shall not be construed against one party or the
other as a result of the preparation, substitution, submission or other event of
negotiation, drafting or execution.
G. Jurisdiction and Venue. Any lawsuit or legal action brought by any party to enforce or
interpret this Agreement or any of its terms or covenants shall be brought in the King
County Superior Court for the State of Washington at the Maleng Regional Justice
Center in Kent, King County, Washington, or its replacement or successor. Vendor
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hereby expressly consents to the personal and exclusive jurisdiction and venue of such
court even if Vendor is a foreign corporation not registered with the State of
Washington.
H. Severability. A court of competent jurisdiction’s determination that any provision or
part of this Agreement is illegal or unenforceable shall not cancel or invalidate the
remainder of this Agreement, which shall remain in full force and effect.
I. Sole and Entire Agreement. This Agreement contains the entire agreement of the
Parties and any representations or understandings, whether oral or written, not
incorporated are excluded.
J. Time is of the Essence. Time is of the essence of this Agreement and each and all of its
provisions in which performance is a factor. Adherence to completion dates set forth
in the description of the Work is essential to the Vendor’s performance of this
Agreement.
K. Third-Party Beneficiaries. Nothing in this Agreement is intended to, nor shall be
construed to give any rights or benefits in the Agreement to anyone other than the
Parties, and all duties and responsibilities undertaken pursuant to this Agreement will
be for the sole and exclusive benefit of the Parties and no one else.
L. Binding Effect. The Parties each bind themselves, their partners, successors, assigns,
and legal representatives to the other party to this Agreement, and to the partners,
successors, assigns, and legal representatives of such other party with respect to all
covenants of the Agreement.
M. Waivers. All waivers shall be in writing and signed by the waiving party. Either party’s
failure to enforce any provision of this Agreement shall not be a waiver and shall not
prevent either the City or Vendor from enforcing that provision or any other provision
of this Agreement in the future. Waiver of breach of any provision of this Agreement
shall not be deemed to be a waiver of any prior or subsequent breach unless it is
expressly waived in writing.
N. Counterparts. The Parties may execute this Agreementin any number of counterparts,
each of which shall constitute an original, and all of which will together constitute this
one Agreement.
IN WITNESS WHEREOF, the Parties have voluntarily entered into this Agreement as of the date
last signed by the Parties below.
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CITY OF RENTON
By:_____________________________
VENDOR
By:____________________________
Kristi Rowland
Deputy Chief Administrative Officer
James Griffiths
Vice President, Finance
_____________________________
Date
_____________________________
Date
Approved as to Legal Form
By: __________________________
Cheryl L. Beyer
City Attorney
CLB Non-standard IT-Contract 01/10/2022 1777
(approved via email from Cheryl Beyer)
PAGE 13 OF 34
EXHIBIT 1
SERVICES AGREEMENT
City of Renton, a Washington
municipal corporation
1055 South Grady Way
Renton, WA 98057
(“Subscriber”)
- and -
Linko Technology
1999 Broadway
Denver, CO 80202
(“Provider” or "AQI")
A. This Service Agreement (the “Service Agreement”) is between Provider and Subscriber seeking
to obtain Provider's service offerings.
B.Provider provides certain service offerings to you (more particularly described in Schedule A
including related professional services (“the Service Offerings” or "Services") upon the terms and
conditions set out in this Agreement. By using the Service Offerings, Subscriber agrees to abide by the
terms of this Agreement.
C. This Agreement includes the following Schedules, each of which are incorporated into and form
part of this Agreement.
භ Schedule A - Description of Service Offerings
භ Schedule B - Subscription Term and payment terms
භ Schedule C - Support and Maintenance
භ Schedule D - Service Levels
භ Schedule E – Provider’s Standard Terms and Conditions
භ Schedule F – Privacy & Acceptable Use Policies
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1. Service Offering.
1.1 Provider will provide the Service Offerings to Subscriber in accordance with applicable laws and
regulations, under the terms of this Agreement and in accordance with Provider-supplied product offering
documentation. Provider has the following responsibilities in addition to those set out in this Agreement.
a) Provider will implement reasonable measures to help you secure Subscriber Content against
accidental or unlawful loss, access or disclosure.
b) Provider will maintain an industry-standard security environment.
c) Provider may provide you (via designated technical resources) with various levels of training in the
use of the Service Offering.
d)Provider may provide you with setup, implementation, data-migration, go-live support, ongoing
support and other services in relation to the Services Offering. These other services will be described in
Schedule A.
e) The Service Offerings will be provided at the service levels set out in Schedule D.
f) To the limited extent that any personally-identifiable information or organizationally-identifiable
information (collectively "PII") is provided by you as Content to be used with the Services Offering, such PII
will be treated as Subscriber's Confidential Information and used by Provider only on the terms set out in
this Agreement and in accordance with Provider's privacy policy as defined in Schedule F – Privacy &
Acceptance Use Policies.
1.2 Provider will support your use of the Service Offerings and will maintain the Service Offering in the
manner set out in Schedule C and this Agreement. Such support and maintenance is provided on
condition that you are current in all payments due to Provider.
1.3 On your request Provider may provide optional professional services ("PS") to you. Such PS will be
provided on mutually agreed terms set out in a Schedule to this agreement, a Quote, or a Statements of
Work (all described as “SOW”) and may include, for example, Software installation, implementation and
additional training. Additionally:
(a) Your responsibilities and Provider’s responsibilities, project schedules, milestones, deliverables with
respect 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, deliverables or pricing of PS may require
adjustment. 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 this Agreement is terminated by Subscriber for cause, PS will be
provided in accordance 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.
1.4 Subscriber's responsibility generally are as follows.
a) The Service Offering is only for your use. You may not provide the Services to any other parties in
any manner, including as a service bureau or application service provider.
b) In using the Service Offering, You will adhere to all applicable laws, rules, and regulations.
c) To use the Service Offering You must create a user account associated with a valid email address.
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 will immediately contact us immediately if you
believe that a user account has been compromised or is being used by unauthorized persons.
d) You may use the Service Offerings only in accordance with any documentation and
acceptable use policies as defined in Exhibit F – Privacy and Accpetable Use Policies.
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1.5 You are responsible for the accuracy, quality, integrity rights to use and legality of data processed
using the Service Offering. You are responsible for ensuring you have the right to use any data, text,
audio, video, images, software, lab samples, operational readings, field readings, or other similar content
("Content") you input into the Services Offering. More particularly it is your responsibility to ensure the
following:
a) that Your Content is compatible with then-current interfaces for a Service Offering;
b) that Your Content complies with the terms of this Agreement, with applicable law and regulation
and any Provider AUP; and
c) that You are responsible for dealing with any legal claims relating to Your Content including any
intellectual property-related claims.
1.6 No other services are provided with the Service Offering unless mutually agreed to otherwise.
Provider may modify this Agreement at any time by providing you at least 90 days advance notice. The
modified terms will become effective on the terms as notified. By continuing to use the Service Offerings
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 [Intentionally Left Blank]
3. Consiquenses of Breach [Intentionally Left Blank]
4. Term; Termination
4.3. Any post-termination assistance additional to that described below is subject to mutual written
agreement.
a) Generally. Upon any termination of this Agreement:
b) Post-Termination Assistance. Following termination:
(i) unless notified otherwise by you, for a period of 30 days following termination we will not erase any
of your Content as a result of the termination in order to allow you retrieve your Content;
(ii) if more than 30 days post-termination are required for you to retrieve all of your Content, you will
be charged for a month-to-month subscription service for each additional 30 day period you require to
retrieve your Content;
(iii) upon retrieval of your Content, you may instruct Provider to destroy all copies of your Content
stored on the Service Offering and request Provider to provide certification in writing that all your Content
has been destroyed within 15 days of Provider receiving Subscriber instructions; and
(iv) we will provide you with the same post-termination data retrieval assistance that we generally
make available to all subscribers on a time and materials basis at our then stated hourly rates.
5. Proprietary Rights and confidentiality
5.1 Ownership.
a)“Proprietary Information” means any information, technical data or know-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 Subscriber, Subscriber exclusively owns all rights, title
and interest in and to all of Subscriber’s Content. No right or license is granted hereby to Subscriber or its
customers, employees or agents, expressly or by implication, with respect to the Proprietary Information or
any patent, patent application or other proprietary right of Provider, except for the limited use licenses
PAGE 16 OF 34
implied by law. Except to the extent required by Washington State Public Records law,the following
terms apply to Proprietary Information and the ownership thereof. Subscriber will hold the Proprietary
Information related to the Seller’s system and any proprietary information related thereto in confidence and
will protect with reasonable care.
b) Subscriber shall not (i) permit any third party to access the Service Offerings 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 Offerings, or (v) access the
Service Offerings in order to build a competitive product or service, or copy any features, functions or
graphics of the Service Offerings.
PAGE 17 OF 34
SCHEDULE A
Description of Service Offerings obtained by Subscriber
Description of Services Provided (See Schedule B for Subscription Term & Payment Terms):
FOG ACP Software - The FOG ACP software system provides FOG programs with an online database for organized
information and clear insights into compliance data that ensures FOG program and/or Sewer Use Ordinances are
enforced and all monitored facilities are within compliance to prevent FOG from entering the sewer collection
system.
FOG ACP Software Additional Named User - Additional names users are provided to ensure the full FOG program is
enabled access to all components of the software and able to manage data as needed.
Description of Professional Services Provided (See Schedule B for Payment Terms):
FOG ACP Software Guided Implementation and Training - The Linko services team will provide the
implementation and training services necessary to ensure the successful adoption of the FOG
ACP software and maximize the effectiveness of the system usage long term.
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Schedule B
Subscription Term and Payment Terms
1 Subscription Term
1.1 The Subscription Term begins when AI sends login credentials to the Subscriber (Table 1). The
Subscription Term begins regardless of whether or not the Professional Services (Table 2) have been
delivered.
1.2 The Subscription Term is for three (3) years, and thereafter parties may mutually agree to renew
for successive one (1) year periods.
2 Payment Terms
2.1 The Annual Subscription Fee is payable on the date when Provider sends login credentials to
Subscriber (Table 1). The Subscription Term commences once Subscriber can successfully login to the
site regardless of whether or not Professional Services (Table 2) have been delivered or have
commenced.
2.2 Professional Services and One-Time Fees are payable on delivery of services unless stated
otherwise (Table 2).
2.3 If mutually agreed by both parties (as eveidenced by use of the services or renewal of the
Agreement), Subscriber shall pay the Annual Subscription Fee each year thereafter. Provider may amend
its fees for any renewal term on 30 days notice to Subscriber given prior to the expiration of the current
term. Any applicable taxes are not included in this fee.
3 Annual Subscription Fees
3.1 The Subscriber agrees to pay the annual subscription fees for the use of the Services Offering
modules listed in Table 1 below and the provided One-Time Services listed in Table 2 below.
3.2 Subscriber acknowledges that additional modules, additional systems/facilities being managed, or
additional users to those listed below may require adjustments in pricing. Subscriber certifies that the
information is accurate and agrees to notify AQI of any material change in the information.
Table 1. Recurring Services Offering and Annual Subscription Fees
Recurring Services Offering Annual Subscription Fee
FOG ACP Software $2495.00
FOG ACP Software Additional Named User $250.00
Total Annual Subscription Fee $2,745.00
Table 2. Professional Services Offering and One-Time Fees
Services Description One-Time Fee
FOG ACP Software Guided Implementation and
Training
$2,950.00
Total One-Time Fee $2,950.00
PAGE 19 OF 34
Schedule C
Support and Maintenance of Service Offerings
Support and maintenance is provided with all Service Offerings.
Provider will maintain the Service Offerings at the latest release making new enhancements and
improvements available as part of Provider’s development methodology. In addition to regular
maintenance of the Service Offerings, Provider will support Subscriber by answering queries from
technically trained users designated by Subscriber and resolve such queries in a manner set out below
1.0 DEFINITIONS
(a)“Case priority 1” means the Service Offering 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” means the Service Offering does not work per user documentation, business
operations can continue in a restricted fashion (although long-term productivity might be adversely
affected) and no work around is immediately available;
(c)“Case priority 3” means the Service Offering does not work per user documentation, impaired
operations of some components, but allows the user to continue use, a work around exists but it is not
obvious or is difficult and as a result there is significant impact productivity or efficiency;
(d)“Case priority 4” means the Service Offering does not work per user documentation, business
operations are not significantly impacted;
(e)“Case priority 5” means the Service Offering does not work per user documentation and does not
affect business operations or does not work as expected and is not in user documentation or is an
enhancement request;
(f)“Documentation” means the instruction manual or help on the Service Offering;
(g)“Operating Hours” are 7:30 am – 5:00 pm (Mon – Fri) Pacific Time excluding Province of British
Columbia and Canadian statutory holidays via the Vancouver, Canada office, 6:00 am - 6:00 pm (Mon -
Fri); Mountain Time excluding State of Colorado and US statutory holidays via the Denver, Colorado office
and 9:00 am - 5:00 pm (Mon – Fri); Australian Eastern Standard Time excluding Tasmanian and Australian
statutory holidays via Hobart, Australia office;
(h)“Resolution” means one or more of the following outcomes: a) a mutually acceptable work
around, b) a configuration/data change or c) a Service Offering Change;
(i)“Service Offering Change” means changes to Service Offering functionality;
2.0 SUPPORT AND MAINTENANCE SERVICES
2.1 Description of Services. During any Subscription Term and subject to the provisions of this
Agreement, AQI will use commercially reasonable efforts to provide the following Support and
Maintenance Services:
(a)Live telephone support with a support representative during Operating Hours;
(b)Email support during Operating Hours;
(c)Live Web conferencing with a support representative during Operating Hours where required to
understand the support case;
(d)Case tracking through our online case tracking system; and
(e)Access to an online Support Portal 24 hours a day, 7 days a week.
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2.2 Support Service Level Agreement
Case Priority Initial Response Target Time to Resolution
1 1 business day or sooner 2 business days
2 1 business day 3 business days
3 1 business day 10 business days
4 1 business day At Provider’s discretion
5 At Provider’s discretion At Provider’s discretion
(a)Provider's recovery time objective (being the maximum time period between a Service Offering is
reported to be out of service/unavailable and when that same Service Offering is restored ("RTO") is 2
business days.
(b)Provider's recovery point objective (being the time period when data may be lost from the Service
Offering since the last backup of data ("RPO") is 24 calendar hours.
(c)Initial Response and Target Time to Resolution time periods start once a case is logged in
Provider’s Support Portal.
(d)Resolution times may exceed the Target Time to Resolution time targets depending on the
complexity involved in determining the root cause of the case and the complexity of finding a resolution for
it. Should this situation arise for priority 1 or 2 cases, the Subscriber will be provided a credit towards their
next Annual Subscription Fee calculated as follows:
a. Credit = Annual Subscription Fee X ((Number of business days in excess of Target Time in a
given Subscription Term) / (Total Number of business days in the same Subscription Term))
(e)The credit for any Subscription Term cannot exceed the Annual Subscription Fee.
(f)Subscription Term Credits can only be used as a rebate toward the purchase of a subsequent
Subscription Term and otherwise has no cash value.
(g)Subscription Term Credits are Subscriber’s sole remedy if resolution times exceed the Target
Time to Resolution.
2.3 Resolution of Service Offering Anomaly. A Service Offering anomaly will be considered to be
resolved when:
(a)the Service Offering is working in substantial accordance with the Documentation when operated
on the supported hardware, operating system and peripheral as designated by Provider; or
(b)Provider has advised the Subscriber of one of the following:
(i) how to correct or bypass the Service Offering anomaly;
(ii) that the anomaly falls within an exception to this Agreement.
3.0 EXCEPTIONS
3.1 Support and Maintenance Exclusions. Maintenance and Support Services are not provided for
and do not apply to:
(a)third party software and middleware or services;
(b)when the Subscriber is in breach of this Agreement or any other agreement between Provider and
the Subscriber;
(c)the Service Offering being improperly implemented;
(d)Hardware, peripherals (including printers) or software other than the Service Offering;
(e)Anomalies in the Service Offering that are not reproducible; or
PAGE 21 OF 34
(f)Anomalies, damage or problems in the Service Offering or its operation caused by:
i.an incompatible or non-functioning configuration, operating system or hardware system;
ii.accident, abuse or misapplication for which Provider is not responsible;
iii.malfunction or non-performance of products supplied by third parties;
iv.use contrary to its intended purpose or contrary to the Documentation; or
v.any other matters beyond AQI’s control.
3.2 Third Party Vendors. The Subscriber 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
Service Offering in or caused by such software, middleware, hardware and/or peripheral.
3.3 Interfaces. AQI will not be responsible for any of the Subscriber’s integration requirements for the
Service Offering resulting from a Subscriber’s use of third party vendors who may not integrate with the
Service Offering.
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Schedule D
Service Levels
Service Commitment
Provider will use commercially reasonable efforts to make Service Offerings available with a Monthly
Uptime Percentage (defined below) of at least 99.9%, in each case during any calendar month (the
“Service Commitment”). In the event Service Offerings do not meet the Service Commitment, you will be
eligible to receive a Service Credit as described below.
Definitions
1) “Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes
during the month in which Service Offerings, as applicable, was “Unavailable.” Monthly Uptime Percentage
measurements exclude downtime resulting directly or indirectly from any Service Offerings SLA Exclusion
(defined below).
2) “Unavailable” means Your Service Offering has no external (to/from internet) connectivity.
3) A “Service Credit” is a dollar credit, calculated as set forth below, that we may credit back to an
eligible account.
Service Commitments and Service Credits
Service Credits are calculated as a percentage of the total monthly-equivalent charges paid by you
(excluding one-time payments such as upfront payments made for initial instance setup) for Service
Offerings in accordance with the schedule below.
Monthly Uptime Percentage Service Credit %
Less than 99.9% but equal to or greater than 99.0%10%
Less than 99.0% 30%
We will apply any Service Credits only against future Service Offerings payments otherwise due from you.
Service Credits will not entitle you to any refund or other payment from Provider. A Service Credit will be
applicable and issued only if the credit amount for the applicable billing cycle is greater than one dollar ($1
USD). Service Credits may not be transferred or applied to any other billing account. Unless otherwise
provided in the Agreement, your sole and exclusive remedy for any unavailability, non-performance, or
other failure by Provider to provide Service Offerings is the receipt of a Service Credit (if eligible) in
accordance with the terms of this Schedule.
Credit Request and Payment Procedures
To receive a Service Credit, you must submit a claim by opening a support case with Provider. To be
eligible, the credit request must be received by us no later than calendar 15 days after the end of the billing
cycle that the unavailability incident occurred within and must include:
1) the words “Service Offerings SLA Credit Request” in the subject line;
2) the dates and times of each Unavailability incident that you are claiming;
3) the URL(s) to the affected Service Offerings instance(s); and
4) your request logs that document the errors and corroborate your claimed outage (any confidential
or sensitive information in these logs should be removed or replaced with asterisks).
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If the Monthly Uptime Percentage of such request is confirmed by us and is less than the Service
Commitment, then we will issue the Service Credit to you within one month after your request is confirmed
by us. Your failure to provide the request and other information as required above will disqualify you from
receiving a Service Credit.
Service Offerings SLA Exclusions
The Service Commitment does not apply to any unavailability, suspension or termination of Service
Offerings, or any other Service Offerings performance issues: (i) that result from a suspension of your
Service Offering for reasons set out in the Agreement; (ii) caused by factors outside of our reasonable
control, including any force majeure event or Internet access or related problems beyond the demarcation
point of the infrastructure provider for Service Offerings); (iii) that result from any actions or inactions of you
or any third party; (iv) that result from your equipment, software or other technology and/or third party
equipment, software or other technology (other than third party equipment within our direct control); (v) that
result from failures of individual instances not attributable to Service Offerings Unavailability; (vi) that result
from any maintenance as provided for pursuant to the Agreement; (vii) arising from our suspension and
termination of your right to use Service Offerings in accordance with the Agreement; or (viii) arising from
downtime related to scheduled maintenance windows (defined below) (collectively, the “Service Offerings
SLA Exclusions”). If availability is impacted by factors other than those used in our Monthly Uptime
Percentage calculation, then we may issue a Service Credit considering such factors at our discretion.
Scheduled Maintenance Windows
From time to time, your Service Offering instance may require maintenance to upgrade or repair hardware
or software that will cause downtime and therefore unavailability to you. We will notify you at least 7
calendar days before such maintenance is required and provide an estimate of the duration required to
perform the maintenance. Most maintenance can be performed with less than 2 hours of downtime but
some may take longer.
We will work with you to schedule a start time & date for the maintenance (a scheduled maintenance
window) that is mutually acceptable to you and us. Once maintenance has started at the agreed time, we
will use commercially reasonable efforts to return your Service Offerings instance(s) to service within the
estimated duration window – but this will not always be possible due to unforeseen complications that may
arise.
Scheduled Maintenance Windows are excluded from the Service Offerings SLA.
PAGE 24 OF 34
Schedule E
Terms and Conditions of Sale
This document sets forth the Terms & Conditions of Sale for goods manufactured and/or supplied, and
services provided, by Aquatic Informatics ULC or other selling entity listed on the accompanying software,
service or other agreement accompanying these Terms and Conditions (“Seller”) and sold to the original
purchaser thereof (“Buyer”). Unless 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 which apply to this offer and any
resulting order or contract for the sale of Seller’s goods and/or services (“Work”).
1. APPLICABLE TERMS & CONDITIONS
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2. PRICES
All prices, unless stated otherwise, are in U.S. dollars and are based on delivery as stated above unless
otherwise 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 during the term of the Contract or provide Seller with acceptable exemption certificates. For
the avoidance of doubt, all obligations to pay any applicable taxes or fees shall survive upon expiration or
Termination of this Contract.
3. LIMITED WARRANTY
Seller warrants that Work sold hereunder will be free from defects in material and workmanship and will,
when used in accordance with the manufacturer’s operating and maintenance instructions, conform to any
express written warranty 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 fitness for a particular purpose, are hereby excluded. The sole remedy
for Work not meeting this Limited Warranty is at Seller’s 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
Seller is willing to provide such replacement, credit or refund.
4. INDEMNIFICATION
[See Agreement Section 10]
5. PATENT PROTECTION
Subject to all limitations of liability provided herein, Seller will, with respect to any Work of Seller’s design
or manufacture, indemnify Buyer from any and all 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
PAGE 25 OF 34
Work that Seller sells to 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 participate in the
defense of such suit when products other than those of Seller are also involved. Seller’s warranty as to use
patents only applies to infringement arising solely out of the inherent operation of the Work according to
their applications as envisioned by Seller’s 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 the transportation 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 Seller’s above
obligation to Buyer, Buyer agrees to defend, indemnify and hold harmless Seller for patent infringement
related to (a) any goods manufactured to the Buyer’s design, (b) services provided in accordance with the
Buyer’s instructions, or (c) Seller’s Work when used in combination with any other devices, parts or
software not provided by Seller hereunder.
6. SOFTWARE AND DATA
All licenses to Seller’s 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 Seller’s software : Seller grants Buyer
only a personal, non-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 is distributed. 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
Not applicable to this agreement. Unless otherwise specified in this Contract, Buyer is responsible for
obtaining any required export or import licenses if applicable. 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-corruption, bribery,
extortion, kickbacks, or similar matters which are applicable to Buyer’s business activities in connection
with this Contract, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977, as amended
(the “FCPA”). Buyer agrees that no payment of money or provision of anything of value will be offered,
promised, paid or transferred, directly or indirectly, 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 for Seller, 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 advantage, with respect to any of Buyer’s activities related to
PAGE 26 OF 34
this Contract. Seller asks Buyer to “Speak Up!” if aware of any violation of law, regulation or our Standards
of Conduct (“SOC”) in relation to this Contract.
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 its control, including but not limited to Government 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 AND WAIVER
[Intentionally left blank]
10. LIMITATION OF LIABILITY
Except for Public Records Compliance under Agreement Section 8, none of the Seller Indemnified Parties
will be liable to Buyer 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 Buyer’s customers for such damages, howsoever
caused, and whether based on warranty, contract, and/or tort (including negligence, strict liability or
otherwise). The total liability of the Seller arising out of the performance or nonperformance hereunder or
Seller’s obligations in connection with the design, manufacture, sale, delivery, and/or use of Work will in no
circumstance exceed in One Hundred Thousand Dollars ($100,000).
11. APPLICABLE LAW AND DISPUTE RESOLUTION
[Intentionally left blank]
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 confirm any new or changed bank transfer or mailing instructions by
calling Seller and speaking with Seller’s 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 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.
13. ENTIRE AGREEMENT & MODIFICATION
[Intentionally left blank]
PAGE 27 OF 34
EXHIBIT H
Privacy & Acceptable Use Policies
PP r i v acyy Pol i cy
1. General Principles
Aquatics Informatics ULC and its affiliates of 2400 – 1111 West Georgia Street Vancouver, BC Canada, V6E
4M3 (“AQI”) has established this privacy policy to comply with regulation and with the highest possible
standards for safeguarding information security and privacy. This privacy policy governs the use of any
information you provide to us through AQI service offerings or by using AQI’s software (“Service
Offering”). Another privacy policy governs your use of AQI’s website (the “Site”). The privacy policy also
describes how we will use such information and the limited circumstances in which:
x Your information will be stored in a manner so as to comply with all applicable laws.
x If you object to your personal information being transferred or used as described in this Privacy
Policy, please do not use the Service Offerings or Site or view any of the content on the Site or
obtain any software or services from AQI.
x Please note that this privacy policy does not apply to any information you supply to third party
sites which may be linked from the website.
x If you, as a Subscriber to our Service Offering or user of our Site have questions or concerns
regarding this statement,please contact AQI.
You expressly consent to our use and disclosure of your personal information in the manner described in
this Privacy Policy by using AQI’s Service Offering or obtaining software from AQI or accessing AQI’s Site.
This Privacy Policy is incorporated into and subject to the terms under which AQI provides Service
Offerings, licenses software or provides Site access.
This Privacy Policy is effective as of April 6, 2020
2. Notification of Changes
If we decide to change this privacy policy, we will inform you so you may review such changes. Any
changes will be effective immediately. If you do not agree to such changes then please contact us and
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we will not use your information in the new manner. We will only use information in accordance with the
privacy policy under which your information was collected and to which you agreed.
3. What personal information we collect
3.1 Information We Collect
We collect the following personal information from you in order to provide you with the Service Offering
(“PII”).
x Organization
x Name and title
x Email, phone or other contact information
x login/username, password,
x knowledge based questions and answers,
x information about your role with organizations such as industry entities or
governmental/regulatory authorities that use the Service Offerings.
3.2 Web and Internet Traffic Information
Due to the technical nature of providing the Service Offering, we may also obtain the following
information:
x the IP address of your server(s);
x which features of the Service Offering you use;
x the times you access our Service Offering;
x the type of device you use to access our Service Offering;
x the content of any undeleted cookies that your browser previously accepted from us;
x the type of browser you use to access the Service Offering;
We use this collected information only to try to understand your preferences better and to manage the
load on our servers, so as to improve our service, analyze trends, administer the site, improve site
PAGE 29 OF 34
performance, and gather broad demographic information for aggregate use. We do not track the
websites that you visit before or after you leave our site.
3.3 Our use of “Cookies”
“Cookies” are small files of data that reside on your computer and allow us to recognize you as a AQI user
if you log in to the Service Offering using the same device, computer or browser. We send a “session
cookie” to your computer/device if and when you log in to your AQI account by entering your email
address and password. These cookies allow us to recognize you if you use multiple functionality of the
Service Offering during the same session, so that you don’t need to re-enter your password multiple
times. Once you log out or close your browser, these session cookies expire and no longer have any
effect. Disabling Cookies – Most web browsers are set up to accept cookies. You may be able to set your
browser to warn you before accepting certain cookies or to refuse certain cookies. However, if you
disable the use of cookies in your web browser, some features of the Service Offerings may be difficult
to use or inoperable.
3.4 Customer service correspondence
If you send us correspondence, including emails or messages, we retain such information in the records
of your account. We will also retain all related correspondence from AQI to you and all related records.
We retain these records in order to measure and improve our customer service, or as required to comply
with applicable law and/or regulation.
3.5 Questionnaires, surveys or profile data
From time to time, we may offer optional questionnaires and surveys to our users for such purposes as
assessing users’ interests and needs. The use of the information collected will be explained in detail in the
survey itself. If we collect personally identifiable information from our users in these questionnaires and
surveys, the users will be given notice of how the information will be used prior to their participation in
the survey or questionnaire.
3.6 Aggregated Data
Using the Service Offerings it is possible to collect aggregated anonymized data which is collected and
stored without association with personal information and does not identify Customer in any way
(“Aggregated Data”). All Aggregated Data is and will be, as between AQI and Customer, the property of
AQI and not considered to be personal information.
4. Use and Disclosure of Collected PII
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4.1 Internal Uses
We use the PII we collect about you in order to:
x verify your identity;
x provide our services;
x improve our services;
x communicate with you;
x authenticate your account, manage your account and provide you with support and
maintenance;
x enforce our terms and conditions for use of the Service Offerings;
x manage and safeguard our business and security;
x perform functions as otherwise described to you at the time of collection; and
x to comply with legal and regulatory requirements;
We limit access to PII to those employees and agents who need to know the information to provide
products and services to you.
4.2 Disclosure to Third Parties
We will not disclose any PII information to third parties except in the limited circumstances described
below, or with your express permission. These third parties are limited by law or by contract from using
PII for secondary purposes beyond the purposes for which the information is disclosed. We disclose
information appropriate to the circumstances as determined in our sole unfettered discretion.
x We disclose PII in response to a subpoena, warrant, court order, levy, attachment, order of a
court-appointed receiver or other comparable legal process, including subpoenas from private
parties in a civil action.
x If we merge or are acquired by another company then the successor company would have
access to PII but would continue to be bound by this Privacy Policy.
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x We may share PII with our authorized service providers that perform certain services on our
behalf. These services may include hosting or data colocation. These service providers may have
access to personal information needed to perform their functions but are not permitted to share
or use such information for any other purposes.
x We disclose PII and any other information that we are required by applicable law to disclose to
applicable parties including, without limitation, law enforcement authorities, regulators or
auditors.
4.3 Our contacts with you
We communicate with users on a regular basis via email or other electronic means to provide requested
services. We also communicate by phone to resolve customer complaints. We use your email address or
phone number to: confirm various transactions related to your use of the Service Offering (including
opening an AQI user account, changing user account passwords or adding or deleting authorized
technical contacts); to send you notice of delivered messages, to send information about important
changes to AQI’s products and services; to inform you about new pricing or products or services; to alert
you to public security or privacy threats; and to send notices and other disclosures required by law.
Generally, users cannot opt out of these communications, but they will be administrative in nature.
4.4 Communications
We communicate with users on a minimal basis for the purpose of AQI Service Offering communication,
unless you opt-out of these communications, sent as an option in each communication. Communications
may include, without limitation, email to explain new AQI products or services, new AQI Service Offering
functionality or surveys for example.
4.5 Retention and deletion of information
We retain all records related to messages sent or received via AQI, your personal identification or any
other information about you or pertaining to you for as long as you have an AQI account. When you
become an AQI user, we also retain records and information about you throughout the application
process. Once we terminate your AQI account, subject to applicable laws requiring us to retain records,
AQI will delete any PII you have provided to AQI in relation to your use of the AQI Service
Offering. Other terms in respect of PII retention are as follows: (a) We will keep PII used to make a
decision affecting you for at least one year after using it to make the decision.
(b) We will destroy PII as soon as it is reasonable to assume that the original purpose is no longer
being served by retention of such PII and retention is no longer necessary for a legal or business purpose.
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(c) We will take due care when destroying PII so as to prevent unauthorized access to the
information.
4.6 Accessing your information and exporting it
You have the ability to review and update your PII by logging into your AQI account. You can also review
and update your PII by contacting us. More information about how to contact us is provided below.
Other terms applicable to reviewing your PII is as follows:
x Upon written request to us, and authentication of identity, we will provide you your PII under
our control. We will also give you information about the ways in which that PII is being used and
a description of the individuals and organizations to whom that PII has been disclosed. We will
make the information available within 30 days of receiving your request.
x In some situations, we may not be able to provide access to certain PII (e.g., if disclosure is
prohibited by law, or would reveal personal information about another individual, the personal
information is protected by solicitor/client privilege, the information was collected for the
purposes of an investigation or where disclosure of the PII would reveal confidential commercial
information. Where an access request is refused, we will notify you in writing, document the
reasons for refusal and outline further steps which are available to you.
You can disable your AQI account by request. We can disable, suspend or terminate it on terms
applicable to the Service Offering you obtain from AQI. You can permanently disable and/or delete your
AQI account at any time by contacting us.
These terms remain in effect after your account is disabled, suspended or terminated.
You can export a copy of content (including PII) if you want to disable or terminate your account
provided you are current in payment of all fees due to AQI or not in breach of any agreement applicable
to the Service Offering you are obtaining from AQI. Contact customer support for assistance in this.
We try to ensure that our Service Offering protects information from accidental or malicious deletion.
Because of this, there may be delays between when you delete something and when copies are deleted
from our active and backup systems.
4.7 Storage
Except to the extent we agree otherwise in writing, we may transfer PII across provincial, state or
national borders to fulfill any of the above purposes, including to service providers located in the United
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States, Canada and other jurisdictions who may be subject to applicable disclosure laws in those
jurisdictions. You may contact us to obtain information about our policies and practices regarding our
use of service providers outside of your country, or to ask questions about the collection, use, disclosure
or storage of PII by our foreign service providers
AA ccep tab l ee U s ee P ol i cy
This Acceptable Use Policy (this “Policy”) describes prohibited uses of the service offerings offered by
Aquatic Informatics ULC and its affiliates of 2400 – 1111 West Georgia Street Vancouver, BC Canada, V6E
4M3 (the “Services”). The examples described in this Policy are not exhaustive. We may modify this Policy
at any time by notifying you. By using the Services, you agree to the latest version of this Policy. Any
future updates to this Policy require the City of Renton approval. If you violate the Policy or authorize or
help others to do so, we may suspend or terminate your use of the Services.
No Illegal, Harmful, or Offensive Use or Content
You may not use, or encourage, promote, facilitate or instruct others to use, the Services for any illegal,
harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content
that is illegal, harmful, or offensive or violates community norms. Prohibited activities or content include:
x Illegal Activities. Any illegal activities.
x Harmful or Fraudulent Activities. Activities that may be harmful to others, our operations or
reputation, or engaging in other deceptive practices.
x Infringing Content. Content that infringes or misappropriates the intellectual property or
proprietary rights of others.
x Offensive Content. Content that is defamatory, obscene, abusive, invasive of privacy, or
otherwise objectionable, including content that constitutes child pornography, relates to
bestiality, or depicts non-consensual sex acts.
x Harmful Content. Content or other computer technology that may damage, interfere with,
surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan
horses, worms, time bombs, or cancelbots.
No Security Violations
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You may not use the Services to violate the security or integrity of any network, computer or
communications system, a software application, or network or computing device (each, a “System”).
Prohibited activities include:
x Unauthorized Access. Accessing or using any System without permission, including attempting
to probe, scan, or test the vulnerability of a System or to breach any security or authentication
measures used by a System.
x Interception. Monitoring of data or traffic on a System without permission.
x Falsification of Origin. Forging TCP-IP packet headers, email headers, or any part of a message
describing its origin or route. This prohibition does not include the use of aliases or anonymous
remailers.
No Network Abuse
You may not make network connections to any users, hosts, or networks unless you have permission to
communicate with them. Prohibited activities include:
x Monitoring or Crawling. Monitoring or crawling of a System that impairs or disrupts the System
being monitored or crawled.