HomeMy Public PortalAbout2011-27 Approving the purchase of a lightning detection and alerting system with WeatherbugRESOLUTION NO. 2011-27
A RESOLUTION OF THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA, APPROVING
THE PURCHASE OF A LIGHTNING DETECTION AND
ALERTING SYSTEM FOR SEVERAL PARKS WITHIN THE
VILLAGE; PROVIDING FOR THE SELECTION OF EARTH
NETWORKS (D/B/A WEATHERBUG) TO PROVIDE THIS
SYSTEM; AUTHORIZING THE VILLAGE MANAGER TO
EXECUTE AN AGREEMENT FOR THE PURCHASE OF THE
SYSTEM; PROVIDING FOR A WAIVER OF COMPETITIVE
BIDDING; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the Village of Key Biscayne, Florida (the "Village") desires to purchase a
lightning detection and alerting system for several parks within the Village (the "System"); and
WHEREAS, Village staff recommends that the Village Council waive competitive bidding,
pursuant to Section 2-85 of the Village Code of Ordinances (the "Village Code"), because it is
impractical to apply such procedures given Earth Networks' d/b/a Weatherbug (the "Weatherbug")
proprietary weather network of 8,000 tracking stations and lightning detection technology; and
WHEREAS, the Village Council authorizes the Village Manager to execute the agreement,
attached hereto as Exhibit "A," with WeatherBug for the System; and
WHEREAS, the Village Council finds that this Resolution is in the best interest and welfare
of the residents of the Village.
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA, AS FOLLOWS:
Section 1. Recitals Adopted. Each of the above stated recitals are hereby adopted,
confirmed and incorporated herein.
Section 2. Approval of Purchase. The Village Council hereby approves the purchase
of the System.
Section 3. Selection of Weatherbug. The Village Council hereby selects Weatherbug
to provide the System.
Section 4. Waiver of Competitive Bidding. The Village Council hereby waives
competitive bidding, pursuant to Section 2-85 of the Village Code, because it is impractical to apply
such procedures given Weatherbug's proprietary weather network of 8,000 tracking stations and
lightning detection technology.
Section 5. Village Manager Authorized. The Village Manager is hereby authorized
to execute the agreement with Weatherbug, attached hereto as Exhibit "A," for the System.
Section 6. Effective Date. This Resolution shall be effective immediately upon
adoption.
PASSED AND ADOPTED this 6th day of September, 201
ATTE
'1,(‘,75''
CHITA H. ALVAREZ, MMC, VILLAGE CLERK
APPRO
VILL E ATTORNEY
AND LEGAL SUFFICIENCY:
2
,,,,,i( (
R FRANKLIN . CAPLAN
Salesperson:
Stuart Hershon
WEATHERBUG PROFESSIONAL AGREEMENT
12410 Milestone Center Drive, Suite 300, Germantown, MD 20876
EARTH NETWORKS dba WEATHERBUG herein referred to as "Earth Networks"
Customer Contact Information
Business Name: Key Biscayne Parks and Recreation
Contact Name:
Todd Hofferberth
Business
Address:
88 West McIntyre Street
Key Biscayne, Fl
33149
Contact Phone:
(305) 365-8900
Contact Fax:
Customer Billin_ Information if different from above
Business Name:
Contact Name:
Business
Address:
Contact Phone:
Contact Fax:
WeatherBug Contact Information
shershon@weatherbug.com
Email Address:
Contact Phone:
(800) 544-4429 ext 4080
Contact Fax:
(301) 258-5210
Product Name
Upgrade of two "Receiver"
model horns to "Transmitter"
model horns.
Notes
Schedule of Products and Services
Quantity
2
Unit Price
$1,000.00
Total Price
$2,000.00
Initial Term of Contract
Date of Original Signed Terms and Conditions:
Grand Total:
$2,000.00
Remarks:
The buyer agrees to payment terms of Net 30 unless otherwise documented. Late payment fees will be charged as one percent (1 %) per month or part
thereof will be charged for any payment that is more than 30 days late.
Installation and/or maintenance costs quoted above are valid for standard installations only. Any installation or maintenance work that requires
non-standard equipment, materials or regulatory expense may be subject to an additional charge.
Please allow six to eight weeks for delivery of hardware.
This order is subject to sales tax at time of invoicing.
The parties agree to be bound by the Earth Networks terms and conditions.
EARTH NETWORKS
By:
Name: It/ ,.1
Title:
.xx ./
Date: //',:t/sieW
Please fax all pages of the signed agreement directly t6 Earth Networks at 1-301-258-5210.
WeatherBug'
1. Payment. The Buyer agrees to payment terms per
Remarks section of Schedule. Late payment fees will be
charged as follows: (a) one percent (1%) per month or part
thereof will be charged for any payment that is more than 30
days late: (b) Payment should be made to:
Earth Networks
Dept 0152, PO Box 120152
Dallas, TX753I2
2. Inspection and Acceptance. It is Buyer's responsibility to
inspect and accept each unit at the time of delivery. Failure of
Buyer to inspect and accept the unit at that time waives
Buyer's rights to inspection and acceptance as a term of the
contract. However, any actions under this clause shall not be
deemed a waiver of any warranty contained herein.
3. Web Services. As part of this package purchase, Seller
agrees to provide to Buyer: (1) complete access to the web
service specified on the Schedule; (2) Provide adequate
bandwidth and server capacity; (3) Provide toll -free technical
support. The above services will be provided for as long as
Seller maintains support for the applicable web service.
4. Term and Termination. The web services shall have an
initial term as specified on the Schedule. Unless otherwise
specified on the Schedule, the web services subscription shall
automatically renew for successive 12 month terms, unless
terminated by either party with at least 30 days written notice
prior to the expiration of the then current term.
5. Dispute. The parties agrees that any dispute, other than those
relating to payment, due and owing from Buyer to Seller, arising
out of or relating to this Agreement, shall be subject to binding
arbitration pursuant to the Commercial Arbitration Rules of the
American Arbitration Association. The parties shall jointly
request that an Arbiter be appointed by the Alternative Dispute
Resolution Administrator for the Circuit Court for Montgomery
County, Maryland, to serve as the final arbiter of any dispute.
Any award of the Arbiter shall be enrollable in the applicable
court for enforcement. Both Buyer and Seller agree that the
finding of the arbitrator is binding and no other remedy,
including legal remedies, is permitted.
6. Warranty. The Seller warrants the hardware and software
purchased by the Buyer against defects in workmanship and
materials for a period of one (1) year from date of delivery
under this contract. The Seller shall, at its sole option, either
repair or replace defective items. Buyer is responsible to
return of defective items to Seller by means specified by the
Seller. The Buyer shall bear all shipping expenses. Packing of
defective items for return is responsibility of Buyer. Damage
due to natural causes (storms, lightning, flying debris, etc.) is
not covered by this warranty. Damage resulting from Buyer
negligence or mishandling of hardware and software is not
covered by this warranty.
7. Alterations and Attachments. If Buyer makes alterations
or attaches a device or any other item to the Earth Networks
unit as sold and installed, the warranty is voided and Seller
has no further obligation under the warranty,
8. Disclaimer of Implied Warranties. EXCEPT AS
PROVIDED ABOVE, THE WEB SERVICES AND DATA
DISPLAYED THEREIN ARE PROVIDED ON AN "AS IS"
AND "AS AVAILABALE" BASIS. EXCEPT AS
PROVIDED IN SECTION 6 ABOVE, SELLER MAKES NO
WARRANTY, EXPRESS OR IMPLIED, TO BUYER, OR
TO ANY AUTHORIZED USER OR THIRD PARTY,
INCLUDING ANY WARRANTIES OF QUALITY,
ACCURACY, PERFORMANCE, COMPATABILiTY,
MERCHANTABILITY, AND FITNESS FOR A
PARTICULAR PURPOSE. BUYER ACKNOWLEDGES
THAT SELLER IS NOT RESPONSIBLE FOR THE
ACCURACY OF ANY INFORMATION OR DATA
CONTAINED M THE SERVICES, AND SELLER SHALL
NOT BE LIABLE FOR ANY LOSSES RESULTING FROM
BUYER'S OR ANY AUTHORIZED USER'S RELIANCE
ON ANY SUCH INFORMATION OR DATA UNDER ANY
CIRCUMSTANCES.
9. Lightning Disclaimer, Experience has shown that the
resolution, timeliness, and format in which lightning data are
ATTACHMENT 1 - TERMS AND CONDITIONS
presented within various displays and products, does not
provide a total solution with regard to addressing
concerns regarding the presence of convective activity
and/or lightning and their potential impact on the safety
of personnel and/or safeguarding of facilities, whether it
be of immediate or short term concern. Interpretation
and application of the data, as well as any comparative
analysis and/or prognosis or similar activities done by
any user, are done so solely at the user's risk and have
not directly or indirectly been implied, condoned or
recommended by Seller, and/or its data suppliers.
10. Liability. Buyer and subsequent users of hardware
and software agree to waive any liability of Seller for
damage caused by hardware and software installation
and operation on any user premises.
11. Limitations of Liability. Except for damages
caused by Seller's willful misconduct, recklessness, or
gross negligence, the parties agree that to the extent
permitted by applicable law, Seller limits or disclaims
liability related to the manufacture, delivery, or use of
the equipment, the software and/or supplies used in
connection with the equipment or the provision of
services for the equipment, as follows: (a) For direct
damages, Seller liability is limited to the amounts paid
by Buyer for the equipment, software, supplies or
services giving rise to, or which are the subject of the
claim, whether such claim alleges breach of contract, or
tortious conduct including but not limited to negligence
or any other theory; (b) Seller disclaims liability for
indirect, incidental, special, or consequential damages
(including but not limited to, loss of use, revenue, or
profit) whether such claim alleges breach of contract,
tortious conduct including but not limited to negligence,
or any other theory.
12. Data Rights. Seller retains all rights to data and/or
video images (hereinafter "data") generated by the Earth
Networks system(s). Seller grants Buyer a limited
license for use of such data, in connection with Buyer's
internal business/educational purposes, but for no other
purpose. Seller has exclusive rights for resale or to
otherwise use data from the installed system(s). Buyer
and users of hardware and software under this contract
cannot provide access to third parties without the
express written consent of Seller. Requests for access
must be in writing to the Seller at the Seller's place of
business. Seller grants Buyer a royalty free license to
use and disseminate data generated by the Buyer's Earth
Networks system for educational purposes, save and
except that Buyer is expressly prohibited from
disseminating data to media outlets (such as TV
stations, cable channels, radio stations, newspapers, and
magazines). Buyer is expressly prohibited from
disseminating data from any other Earth Networks
system.
13. Access To Communication Line. Buyer agrees to
connect, at Buyer expense, the Earth Networks unit(s) to
a dedicated, full-time Internet connection. Buyer further
agrees to maintain the Earth Networks system in an
operational mode at all times and to permit Seller
authorized outside access to system data through the
telecommunication line. Telecommunication line
expense is solely the obligation of Buyer. Buyer agrees
to follow all procedures outlined in the Operations
Manual to ensure system access is maintained.
14. Non -Waiver of Rights. The failure of Buyer or
Seller to insist upon strict performance of the terms and
conditions of this Contract or to exercise any rights or
remedies, shall not be construed as a waiver or its rights
to assert any of same rights or to rely on any such terns
or conditions at any time thereafter.
15. Governing Law. This Agreement shall be
governed by the laws of the State of Maryland.
16. Attorney's Fees/Costs. In any action by a pa o
enforce its rights hereunder, the non -prevailing party
WeatherBug
i1
+o
shall pay the prevailing party's costs and expenses
(including reasonable attomey's fees & other arbitration
costs).
17. Extraordinary Circumstances. Except for obligations
of payment, neither Seller nor the Buyer shall be liable for
nonperformance caused by circumstances beyond their
control, including but not limited to, work stoppages, floods,
lightning and all other acts of God.
18. Breach. Either party may terminate this Agreement on
breach by the other party of any material term or condition
hereof 10 days after written notice is given to the breaching
party by the non -breaching party if such breach is not cured.
19. Order Fulfillment. If this is a multiple unit order
and/or includes promotional goods, credits, services, and the
Buyer does not fully complete the terms of the Order
agreement, Seller reserves the right to re -bill at standard
prices or to retrieve the promotional items, unless the Buyer
reconciles by acquiring another Earth Networks product
eligible for such promotional items/discounts.
20. Patent Indemnity. Seller will defend the Buyer from,
and pay for ultimate judgment or liability for infringement
in the United States by equipment or operating system
software ("Software") of any patent, trademark, trade secret,
protected semiconductor chip mask work, or copyright if
Buyer promptly notifies Seller in writing of any alleged
infringement, allows Seller to defend, and cooperates with
Seller. Seller is not responsible for any non -Earth Networks
litigation expenses or settlements unless Earth Networks
agrees to them in writing. Seller is not liable for any
infringement due to equipment or software being made or
modified by the Buyer or Buyer requested specification or
designs, or being used or sold in combination with
equipment, software, or supplies not provided by Seller.
IMPORTANT: SELLER MAKES NO OTHER EXPRESS
OR IMPLIED WARRANTY OF NON -INFRINGEMENT
AND HAS NO OTHER LIABILITY FOR
INFRINGEMENT OR ANY DAMAGES THEREFROM.
To avoid an infringement (even if not alleged) Seller may, at
its option, at no charge to Buyer, obtain a license to use,
modify, or substitute an equivalent item for the infringing
equipment or software.
21. Purchase Orders. Except for identifying goods,
services or software ordered, prices and quantities, the terms
and conditions contained or referenced in Buyer purchase
order or other ordering documents shall be of no force or
effect.
22. Necessary Maintenance by Earth Networks. Buyer
will provide, upon reasonable notice by Seller, access to the
system(s) for the purpose of supplying necessary
maintenance and/or the installation of additional sensor
equipment.
23. Severability/Assignability. If any provision of this
Agreement shall be held to be invalid or unenforceable, the
remainder of this Agreement shall not be affected thereby
and shall remain valid and enforceable. Neither party may
assign this Agreement or any of its rights and obligations
hereunder to any person, firm or corporation, without the
prior written consent of the other, which consent shall not be
unreasonably withheld, provided however that either party
may assign this Agreement to a successor in interest as a
result of a sale of all or substantially all of its stock or assets.
24. Modification. This contract shall not be varied in its
terms or conditions by any oral Agreement or
representation, but only by an instrument in writing of even
or subsequent date thereto, properly executed by both the
Seller and Buyer.
25. Entire Agreement. The terms and conditions contained
or referenced in this Order Agreement are the complete and
entire agreement between Seller and Buyer respecting the
subject matter of this Agreement.
s omer _ and Date
WEATHERBUG PROFESSIONAL AGREEMENT
12410 Milestone Center Drive, Suite 300, Germantown, MD 20876
EARTH NETWORKS dba WEATHERBUG herein referred to as °Earth Networks"
Customer Contact Information
Business Name: Key Biscayne Parks and Recreation
Contact Name:
Todd Hofferberth
Business
Address:
88 West McIntyre Street
Key Biscayne, Fl
33149
Contact Phone:
(305) 365-8900
Contact Fax:
Customer 13illina Information if different from above
Business Name:
Contact Name:
Business
Address:
Contact Phone:
Contact Fax:
Salesperson:
Contact Phone:
Stuart Hershon
WeatherBug Contact Information
Email Address: shershon@weatherbug.com
Contact Fax:
(800) 544-4429 ext 4080
(301) 258-5210
Product
Name
Schedule
Notes
of Products and Services
Quantity
Unit Price
Total Price
Installation:
Horn
3
$500.00
$1,500.00
Installation:
Weather Station
plus Lightning
Package
1
$2,500.00
$2,500.00
Lightning
Package
Upgrade
1
$3,990.00
$3,990.00
Online Weather
Center -
Lifetime
1
$0.00
$0.00
Outdoor
Alerting System
2
$5,490.00
$10,980.00
Outdoor
Alerting System
1
$6,490.00
$6,490.00
Streamer RT —
Gov't / Comm (3
Seat License)
StreamerRT is provided at no cost in
year one of the contract. It then
becomes renewable in year two at
$1,500 annually for a three seat
license.
1
$0.00
$0.00
WeatherBug
Protect
5
$0.00
$0.00
WeatherBug
Tracking Station
w/ Display
1
$5,000.00
$5,000.00
Initial Term of
Contract
Date of Original Signed Terms and Conditions:
Grand Total:
$30,460.00
(WeatherBug'
ATTACHMENT 1 - TERMS AND CONDITIONS
(WeatherBug'
is
Remarks:
The buyer agrees to payment terms of Net 30 unless otherwise documented. Late payment fees will be charged as one percent (1 %) per month or part
thereof will be charged for any payment that is more than 30 days late.
Installation and/or maintenance costs quoted above are valid for standard installations only. Any installation or maintenance work that requires
non-standard equipment, materials or regulatory expense may be subject to an additional charge.
Please allow six to eight weeks for delivery of hardware.
This order is subject to sales tax at time of invoicing.
The parties agree to be bound by the Earth Networks terms and conditions.
Customer: EARTH NETWORKS
'117 /17". By: 11:41,X
Name: a 7/,_,.;. 7
��� Title: ��` � /-�
/ 4,Y1 Date: /3 i�'
Please fax all pages of the signed agreement directly to Earth Networks at 1-301-258-5210.
WeatherBug'
(WeamerBug
1. Payment. The Buyer agrees to payment terms per
Remarks section of Schedule. Late payment fees will be
charged as follows: (a) one percent (1%) per month or part
thereof will be charged for any payment that is more than 30
days late: (b) Payment should be made to:
Earth Networks
Dept 0152, PO Box 120152
Dallas, TX75312
2. Inspection and Acceptance. It is Buyer's responsibility to
inspect and accept each unit at the time of delivery. Failure of
Buyer to inspect and accept the unit at that time waives
Buyer's rights to inspection and acceptance as a term of the
contract. However, any actions under this clause shall not be
deemed a waiver of any warranty contained herein.
3. Web Services. As part of this package purchase, Seller
agrees to provide to Buyer: (1) complete access to the web
service specified on the Schedule; (2) Provide adequate
bandwidth and server capacity; (3) Provide toll -free technical
support. The above services will be provided for as long as
Seller maintains support for the applicable web service.
4. Term and Termination. The web services shall have an
initial term as specified on the Schedule. Unless otherwise
specified on the Schedule, the web services subscription shall
automatically renew for successive 12 month terms, unless
terminated by either party with at least 30 days written notice
prior to the expiration of the then current term
5. Dispute. The parties agrees that any dispute, other than those
relating to payment, due and owing from Buyer to Seller, arising
out of or relating to this Agreement, shall be subject to binding
arbitration pursuant to the Commercial Arbitration Rules of the
American Arbitration Association. The parties shall jointly
request that an Arbiter be appointed by the Alternative Dispute
Resolution Administrator for the Circuit Court for Montgomery
County, Maryland, to serve as the final arbiter of any dispute.
Any award of the Arbiter shall be enrollable in the applicable
court for enforcement. Both Buyer and Seller agree that the
finding of the arbitrator is binding and no other remedy,
including legal remedies, is permitted.
6. Warranty. The Seller warrants the hardware and software
purchased by the Buyer against defects in workmanship and
materials for a period of one (1) year from date of delivery
under this contract. The Seller shall, at its sole option, either
repair or replace defective items. Buyer is responsible to
return of defective items to Seller by means specified by the
Seller. The Buyer shall bear all shipping expenses. Packing of
defective items for return is responsibility of Buyer. Damage
due to natural causes (storms, lightning, flying debris, etc.) is
not covered by this warranty. Damage resulting from Buyer
negligence or mishandling of hardware and software is not
covered by this warranty.
7. Alterations and Attachments. If Buyer makes alterations
or attaches a device or any other item to the Earth Networks
unit as sold and installed, the warranty is voided and Seller
has no further obligation under the warranty.
8. Disclaimer of Implied Warranties. EXCEPT AS
PROVIDED ABOVE, THE WEB SERVICES AND DATA
DISPLAYED THEREIN ARE PROVIDED ON AN "AS IS"
AND "AS AVAILABALE" BASIS. EXCEPT AS
PROVIDED IN SECTION 6 ABOVE, SELLER MAKES NO
WARRANTY, EXPRESS OR IMPLIED, TO BUYER, OR
TO ANY AUTHORIZED USER OR THIRD PARTY,
INCLUDING ANY WARRANTIES OF QUALITY,
ACCURACY, PERFORMANCE, COMPATABILITY,
MERCHANTABILITY, AND FITNESS FOR A
PARTICULAR PURPOSE. BUYER ACKNOWLEDGES
THAT SELLER IS NOT RESPONSIBLE FOR THE
ACCURACY OF ANY INFORMATION OR DATA
CONTAINED IN THE SERVICES, AND SELLER SHALL
NOT BE LIABLE FOR ANY LOSSES RESULTING FROM
BUYER'S OR ANY AUTHORIZED USER'S RELIANCE
ON ANY SUCH INFORMATION OR DATA UNDER ANY
CIRCUMSTANCES.
9. Lightning Disclaimer. Experience has shown that the
resolution, timeliness, and format in which lightning data are
ATTACHMENT 1 - TERMS AND CONDITIONS
presented within various displays and products, does not
provide a total solution with regard to addressing
concerns regarding the presence of convective activity
and/or lightning and their potential impact on the safety
of personnel and/or safeguarding of facilities, whether it
be of immediate or short term concern. Interpretation
and application of the data, as well as any comparative
analysis and/or prognosis or similar activities done by
any user, are done so solely at the user's risk and have
not directly or indirectly been implied, condoned or
recommended by Seller, and/or its data suppliers.
10. Liability. Buyer and subsequent users of hardware
and software agree to waive any liability of Seller for
damage caused by hardware and software installation
and operation on any user premises.
11. Limitations of Liability. Except for damages
caused by Seller's willful misconduct, recklessness, or
gross negligence, the parties agree that to the extent
permitted by applicable law, Seller limits or disclaims
liability related to the manufacture, delivery, or use of
the equipment, the software and/or supplies used in
connection with the equipment or the provision of
services for the equipment, as follows: (a) For direct
damages, Seller liability is limited to the amounts paid
by Buyer for the equipment, software, supplies or
services giving rise to, or which are the subject of the
claim, whether such claim alleges breach of contract, or
tortious conduct including but not limited to negligence
or any other theory; (b) Seller disclaims liability for
indirect, incidental, special, or consequential damages
(including but not limited to, loss of use, revenue, or
profit) whether such claim alleges breach of contract,
tortious conduct including but not limited to negligence,
or any other theory.
12. Data Rights. Seller retains all rights to data and/or
video images (hereinafter "data") generated by the Earth
Networks system(s). Seller grants Buyer a limited
license for use of such data, in connection with Buyer's
internal business/educational purposes, but for no other
purpose. Seller has exclusive rights for resale or to
otherwise use data from the installed system(s). Buyer
and users of hardware and software under this contract
cannot provide access to third parties without the
express written consent of Seller. Requests for access
must be in writing to the Seller at the Seller's place of
business. Seller grants Buyer a royalty free license to
use and disseminate data generated by the Buyer's Earth
Networks system for educational purposes, save and
except that Buyer is expressly prohibited from
disseminating data to media outlets (such as TV
stations, cable channels, radio stations, newspapers, and
magazines). Buyer is expressly prohibited from
disseminating data from any other Earth Networks
system.
13. Access To Communication Line. Buyer agrees to
connect, at Buyer expense, the Earth Networks unit(s) to
a dedicated, full-time Internet connection. Buyer further
agrees to maintain the Earth Networks system in an
operational mode at all times and to permit Seller
authorized outside access to system data through the
telecommunication line. Telecommunication line
expense is solely the obligation of Buyer. Buyer agrees
to follow all procedures outlined in the Operations
Manual to ensure system access is maintained.
14. Non -Waiver of Rights. The failure of Buyer or
Seller to insist upon strict performance of the terms and
conditions of this Contract or to exercise any rights or
remedies, shalt not be construed as a waiver or its rights
to assert any of same rights or to rely on any such terms
or conditions at any time thereafter.
15. Governing Law. This Agreement shall be
governed by the laws of the State of Maryland.
16, Attorney's Fees/Costs. In any action by a party
enforce its rights hereunder, the non -prevailing p
shall pay the prevailing party's costs and expenses
(including reasonable attorney's fees & other arbitration
costs).
17. Extraordinary Circumstances. Except for obligations
of payment, neither Seller nor the Buyer shall be liable for
nonperformance caused by circumstances beyond their
control, including but not limited to, work stoppages, floods,
lightning and all other acts of God.
18. Breach. Either party may terminate this Agreement on
breach by the other party of any material term or condition
hereof 10 days after written notice is given to the breaching
party by the non -breaching party if such breach is not cured.
19. Order Fulfillment. If this is a multiple unit order
and/or includes promotional goods, credits, services, and the
Buyer does not fully complete the terms of the Order
agreement, Seller reserves the right to re -bill at standard
prices or to retrieve the promotional items, unless the Buyer
reconciles by acquiring another Earth Networks product
eligible for such promotional items/discounts.
20. Patent Indemnity. Seller will defend the Buyer from,
and pay for ultimate judgment or liability for infringement
in the United States by equipment or operating system
software ("Software") of any patent, trademark, trade secret,
protected semiconductor chip mask work, or copyright if
Buyer promptly notifies Seller in writing of any alleged
infringement, allows Seller to defend, and cooperates with
Seller. Seller is not responsible for any non -Earth Networks
litigation expenses or settlements unless Earth Networks
agrees to them in writing. Seller is not liable for any
infringement due to equipment or software being made or
modified by the Buyer or Buyer requested specification or
designs, or being used or sold in combination with
equipment, software, or supplies not provided by Seller.
IMPORTANT: SELLER MAKES NO OTHER EXPRESS
OR IMPLIED WARRANTY OF NON -INFRINGEMENT
AND HAS NO OTHER LIABILITY FOR
INFRINGEMENT OR ANY DAMAGES THEREFROM.
To avoid an infringement (even if not alleged) Seller may, at
its option, at no charge to Buyer, obtain a license to use,
modify, or substitute an equivalent item for the infringing
equipment or software.
21. Purchase Orders. Except for identifying goods,
services or software ordered, prices and quantities, the terms
and conditions contained or referenced in Buyer purchase
order or other ordering documents shall be of no force or
effect.
22. Necessary Maintenance by Earth Networks. Buyer
will provide, upon reasonable notice by Seller, access to the
system(s) for the purpose of supplying necessary
maintenance and/or the installation of additional sensor
equipment.
23. Severability/Assignability. If any provision of this
Agreement shall be held to be invalid or unenforceable, the
remainder of this Agreement shall not be affected thereby
and shall remain valid and enforceable. Neither party may
assign this Agreement or any of its rights and obligations
hereunder to any person, firm or corporation, without the
prior written consent of the other, which consent shall not be
unreasonably withheld, provided however that either party
may assign this Agreement to a successor in interest as a
result of a sate of all or substantially all of its stock or assets.
24. Modification. This contract shall not be varied in its
terms or conditions by any oral Agreement or
representation, but only by an instrument in writing of even
or subsequent date thereto, properly executed by both the
Seller and Buyer.
25. Entire Agreement The terms and conditions contained
or referenced in this Order Agreement are the complete and
entire agreement between Seller and Buyer respecting the
subject matter of this Agreement.
t,c)
rty
C .. tome .i nature and Date
ADDENDUM
TO
ATTACHMENT 1 - TERMS AND CONDITIONS
OF THE WEATHERBUG PROFESSIONAL AGREEMENT
BY AND BETWEEN
KEY BISCAYNE PARKS AND RECREATION ("BUYER")
AND EARTH NETWORKS ("SELLER")
DATED AS OF 3. U n e a� , 2011
(This "ADDENDUM")
1. The terms and provisions of this Addendum shall supersede and control over any
conflicts between the Schedule of Products and Services and Attachment 1 — Terms and
Conditions (collectively, the "Agreement").
2. Payment due for the products and services to be provided by Seller pursuant to the
Agreement shall be due on or before thirty (30) days after the date the lightning detection system
becomes fully operational.
3. Seller confirms that the installation and anticipated maintenance costs for the
lightning detection system are "standard" and no additional charge shall be required for the
same.
4. The second sentence of Paragraph 2 of Attachment 1 (the "Attachment") relating
to Inspection and Acceptance is hereby deleted.
5. Paragraph 3(1) is hereby amended to clarify that Buyer shall have complete
access to the Streamer RT web service.
6. Paragraph 5 of the Attachment is hereby amended to modify the venue for any
arbitration to be in Miami -Dade County, Florida.
7. Paragraph 6 of the Attachment is hereby amended to clarify that the cost of the
return of defective items covered under warranty shall be at Seller's expense if it specifies a
manner of delivery other than standard ground delivery.
8. Paragraph 7 of the Attachment is hereby amended to clarify that only material
changes made to the equipment sold by Seller without Seller's consent, not to be unreasonably
withheld, may result in the warranty being voided as to the modified equipment.
9. The third sentence of Paragraph 8 of the Attachment is hereby deleted
commencing with "BUYER ACKNOWLEDGES..." In place of said provision, the following
provision shall be inserted: THE EQUIPMENT AND SOFTWARE SOLD BY SELLER
SHALL WORK FOR THEIR INTENDED USE AND PURPOSE AS A LIGHTNING
DETECTION SYSTEM FREE OF ANY DEFECT AND SHALL OPERATE IN
ACCORDANCE WITH ALL OF SELLER'S SPECIFICATIONS, WARRANTIES AND
REPRESENTATIONS.
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Weatherbug Agreement Attachment 1 v2 (3).doc
10. Paragraph 10 of the Attachment is hereby deleted.
11. The first sentence of Paragraph 11 of the Attachment is hereby amended to delete
the word "gross."
12. Paragraph 15 is hereby amended to reflect that the laws of the State of Florida
shall govern the agreement.
13. Paragraph 19 is hereby deleted in its entirety.
14. Paragraph 21 is hereby deleted in its entirety.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum on the dates set
forth below.
VILLAGE OF KEY BISCAYNE
Todd Hofferberth, Director, Parks & Recreation
Date: q i..5' 1/
EARTH NETWORKS d/b/a WEATHERBUG
By: 1 az- LA) , 0 CDA,,r> _
Date: 1' 2- > /
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Weatherbug Agreement Attachment 1 v2 (3).doc