HomeMy WebLinkAbout120 Water Audit, Inc./UTILITIES/ $22,368/COVID Wastewater Monitoring Kit DocuSign Envelope ID: D9A506C0-FCCC-4F7D-80F1-C7292938ADAE
120 Water Audit,Inc. APPROVED
Utilities Department-2021 By Jon Oberlander at 8:20 am,Dec 16,2020
Appropriation#01-1420-00;P.O.#S03115
Contract Not To Exceed$22,368.00
AGREEMENT FOR PURCHASE OF GOODS AND SERVICES
THIS AGREEMENT FOR PURCHASE OF GOODS AND SERVICES ("Agreement") is hereby entered into by
and between the City of Carmel, Indiana, acting by and through its Board of Public Works and Safety ("City"), and
120 Water Audit, Inc., an entity duly authorized to do business in the State of Indiana ("Vendor").
TERMS AND CONDITIONS
1. ACKNOWLEDGMENT,ACCEPTANCE:
Vendor acknowledges that it has read and understands this Agreement, and agrees that its execution of
same constitutes its acceptance of all of the Agreement's terms and conditions.
2. PERFORMANCE:
City agrees to purchase the goods and/or services (the "Goods and Services") from Vendor using City
budget appropriation number 01-1420-00 funds. Vendor agrees to provide the Goods and Services and to
otherwise perform the requirements of this Agreement by applying at all times the highest technical and
industry standards.
3. PRICE AND PAYMENT TERMS:
3.1 Vendor estimates that the total price for the Goods and Services to be provided to City hereunder
shall be no more than Twenty Two Thousand Three Hundred Sixty Eight Dollars ($22,368.00) (the
"Estimate"). Vendor shall submit an invoice to City no more than once every thirty (30) days detailing
the Goods and Services provided to City within such time period. City shall pay Vendor for such
Goods and Services within thirty-five (35) days after the date of City's receipt of Vendor's invoice
detailing same, so long as and to the extent such Goods and Services are not disputed, are in
conformance with the specifications set forth in Exhibit A, are submitted on an invoice that contains
the information contained on attached Exhibit B, and Vendor has otherwise performed and satisfied
all the terms and conditions of this Agreement.
3.2 Vendor agrees not to provide any Goods and Services to City that would cause the total cost of the
Goods and Services provided by Vendor to City hereunder to exceed the Estimate, unless City has
previously agreed, in writing, to pay an amount in excess thereof.
4. WARRANTY:
Vendor expressly warrants that the Goods and Services covered by this Agreement will conform to those
certain specifications, descriptions and/or quotations regarding same as were provided to Vendor by City
and/or by Vendor to and accepted by City, all of which documents are incorporated herein by reference, and
that the Goods and Services will be delivered in a timely, good and workmanlike manner and free from
defect.Vendor acknowledges that it knows of City's intended use and expressly warrants that the Goods and
Services provided to City pursuant to this Agreement have been selected by Vendor based upon City's
stated use and are fit and sufficient for their particular purpose.
5. TIME AND PERFORMANCE:
This Agreement shall become effective as of the last date on which a party hereto executes same ("Effective
Date"), and both parties shall thereafter perform their obligations hereunder in a timely manner. Time is of the
essence of this Agreement.
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DocuSign Envelope ID: D9A506C0-FCCC-4F7D-80F1-C7292938ADAE
120 Water Audit,Inc.
Utilities Department-2021
Appropriation#01-1420-00;P.O.#S03115
Contract Not To Exceed$22,368.00
6. DISCLOSURE AND WARNINGS:
If requested by City, Vendor shall promptly furnish to City, in such form and detail as City may direct, a list of
all chemicals, materials, substances and items used in or during the provision of the Goods and Services
provided hereunder, including the quantity, quality and concentration thereof and any other information
relating thereto. At the time of the delivery of the Goods and Services provided hereunder, Vendor agrees to
furnish to City sufficient written warning and notice (including appropriate labels on containers and packing)
of any hazardous material utilized in or that is a part of the Goods and Services.
7. LIENS:
Vendor shall not cause or permit the filing of any lien on any of City's property. In the event any such lien is
filed and Vendor fails to remove such lien within ten (10) days after the filing thereof, by payment or bonding,
City shall have the right to pay such lien or obtain such bond, all at Vendor's sole cost and expense.
8. DEFAULT:
In the event Vendor: (a) repudiates, breaches or defaults under any of the terms or conditions of this
Agreement, including Vendor's warranties; (b) fails to provide the Goods and Services as specified herein;
(c)fails to make progress so as to endanger timely and proper provision of the Goods and Services and does
not correct such failure or breach within five (5) business days (or such shorter period of time as is
commercially reasonable under the circumstances) after receipt of notice from City specifying such failure or
breach; or (d) becomes insolvent, is placed into receivership, makes a general assignment for the benefit of
creditors or dissolves, each such event constituting an event of default hereunder, City shall have the right to
(1) terminate all or any parts of this Agreement, without liability to Vendor; and (2) exercise all other rights
and remedies available to City at law and/or in equity.
9. INSURANCE AND INDEMNIFICATION:
Vendor shall procure and maintain in full force and effect during the term of this Agreement, with an insurer
licensed to do business in the State of Indiana, such insurance as is necessary for the protection of City and
Vendor from all claims for damages under any workers' compensation, occupational disease and/or
unemployment compensation act; for bodily injuries including, but not limited to, personal injury, sickness,
disease or death of or to any of Vendor's agents, officers, employees, contractors and subcontractors; and,
for any injury to or destruction of property, including, but not limited to, any loss of use resulting therefrom.
The coverage amounts shall be no less than those amounts set forth in attached Exhibit C. Vendor shall
cause its insurers to name City as an additional insured on all such insurance policies, shall promptly provide
City, upon request,with copies of all such policies, and shall provide that such insurance policies shall not be
canceled without thirty (30) days prior notice to City. Vendor shall indemnify and hold harmless City from and
against any and all liabilities, claims, demands or expenses (including, but not limited to, reasonable attorney
fees) for injury, death and/or damages to any person or property arising from or in connection with Vendor's
provision of Goods and Services pursuant to or under this Agreement or Vendor's use of City property.
Vendor further agrees to indemnify, defend and hold harmless City and its officers, officials, agents and
employees from all claims and suits of whatever type, including, but not limited to, all court costs, attorney
fees, and other expenses, caused by any act or omission of Vendor and/or of any of Vendor's agents,
officers, employees, contractors or subcontractors in the performance of this Agreement. These
indemnification obligations shall survive the termination of this Agreement.
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DocuSign Envelope ID: D9A506C0-FCCC-4F7D-80F1-C7292938ADAE
120 Water Audit,Inc.
Utilities Department-2021
Appropriation#01-1420-00;P.O.#S03115
Contract Not To Exceed$22,368.00
10. GOVERNMENT COMPLIANCE:
Vendor agrees to comply with all federal, state and local laws, executive orders, rules, regulations and codes
which may be applicable to Vendor's performance of its obligations under this Agreement, and all relevant
provisions thereof are incorporated herein by this reference. Vendor agrees to indemnify and hold harmless
City from any loss, damage and/or liability resulting from any such violation of such laws, orders, rules,
regulations and codes. This indemnification obligation shall survive the termination of this Agreement.
11. NONDISCRIMINATION:
Vendor represents and warrants that it and all of its officers, employees, agents, contractors and
subcontractors shall comply with all laws of the United States, the State of Indiana and City prohibiting
discrimination against any employee, applicant for employment or other person in the provision of any Goods
and Services provided by this Agreement with respect to their hire, tenure, terms, conditions and privileges of
employment and any other matter related to their employment or subcontracting, because of race, religion,
color, sex, handicap, national origin, ancestry, age, disabled veteran status and/or Vietnam era veteran
status.
12. E-VERIFY:
Pursuant to I.C. § 22-5-1.7 et seq., as the same may be amended from time to time, and as is incorporated
herein by this reference (the "Indiana E-Verify Law"), Vendor is required to enroll in and verify the work
eligibility status of its newly-hired employees using the E-Verify program, and to execute the Affidavit
attached herein as Exhibit D, affirming that it is enrolled and participating in the E-verify program and does
not knowingly employ unauthorized aliens. In support of the Affidavit, Vendor shall provide the City with
documentation indicating that it has enrolled and is participating in the E-Verify program. Should
Vendor subcontract for the performance of any work under and pursuant to this Agreement, it shall fully
comply with the Indiana E-Verify Law as regards each such subcontractor. Should the Vendor or any
subcontractor violate the Indiana E-Verify law, the City may require a cure of such violation and thereafter, if
no timely cure is performed, terminate this Agreement in accordance with either the provisions hereof or
those set forth in the Indiana E-Verify Law. The requirements of this paragraph shall not apply should the E-
Verify program cease to exist.
13. NO IMPLIED WAIVER:
The failure of either party to require performance by the other of any provision of this Agreement shall not
affect the right of such party to require such performance at any time thereafter, nor shall the waiver by any
party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the
same or any other provision hereof.
14. NON-ASSIGNMENT:
Vendor shall not assign or pledge this Agreement, whether as collateral for a loan or otherwise, and shall not
delegate its obligations under this Agreement without City's prior written consent.
15. RELATIONSHIP OF PARTIES:
The relationship of the parties hereto shall be as provided for in this Agreement, and neither Vendor nor any
of its officers, employees, contractors, subcontractors and agents are employees of City. The contract price
set forth herein shall be the full and maximum compensation and monies required of City to be paid to
Vendor under or pursuant to this Agreement
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DocuSign Envelope ID: D9A506C0-FCCC-4F7D-80F1-C7292938ADAE
120 Water Audit,Inc.
Utilities Department-2021
Appropriation#01-1420-00;P.O.#S03115
Contract Not To Exceed$22,368.00
16. GOVERNING LAW; LAWSUITS:
This Agreement is to be construed in accordance with and governed by the laws of the State of Indiana,
except for its conflict of laws provisions. The parties agree that, in the event a lawsuit is filed hereunder, they
waive their right to a jury trial, agree to file any such lawsuit in an appropriate court in Hamilton County,
Indiana only, and agree that such court is the appropriate venue for and has jurisdiction over same.
17. SEVERABILITY:
If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive
order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to
comply with same, and the remaining provisions of this Agreement shall remain in full force and effect.
18. NOTICE:
Any notice provided for in this Agreement will be sufficient if it is in writing and is delivered by postage
prepaid U.S. certified mail, return receipt requested, to the party to be notified at the address specified
herein:
If to City: City of Carmel AND Douglas C. Haney,
Carmel Utilities Corporation Counsel
30 West Main Street Department of Law
Suite 220 One Civic Square
Carmel, Indiana 46032 Carmel, Indiana 46032
If to Vendor: 120 Water Audit, Inc.
PO Box 604
Zionsville, Indiana 46077
Notwithstanding the above, notice of termination under paragraph 19 hereinbelow shall be effective if given
orally, as long as written notice is then provided as set forth hereinabove within five (5) business days from
the date of such oral notice.
19. TERMINATION:
19.1 Notwithstanding anything to the contrary contained in this Agreement, City may, upon notice to
Vendor, immediately terminate this Agreement for cause, in the event of a default hereunder by
Vendor and/or if sufficient funds are not appropriated or encumbered to pay for the Goods and
Services to be provided hereunder. In the event of such termination, Vendor shall be entitled to
receive only payment for the undisputed invoice amount representing conforming Goods and
Services delivered as of the date of termination, except that such payment amount shall not exceed
the Estimate amount in effect at the time of termination, unless the parties have previously agreed in
writing to a greater amount.
19.2 City may terminate this Agreement at any time upon thirty (30) days prior notice to Vendor. In the
event of such termination, Vendor shall be entitled to receive only payment for the undisputed
invoice amount of conforming Goods and Services delivered as of the date of termination, except
that such payment amount shall not exceed the Estimate amount in effect at the time of termination,
unless the parties have previously agreed in writing to a greater amount.
19.3 The City may terminate this Agreement pursuant to Paragraph 11 hereof, as appropriate.
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DocuSign Envelope ID: D9A506C0-FCCC-4F7D-80F1-C7292938ADAE
120 Water Audit,Inc.
Utilities Department-2021
Appropriation#01-1420-00;P.O.#S03115
Contract Not To Exceed$22,368.00
20. REPRESENTATIONS AND WARRANTIES
The parties represent and warrant that they are authorized to enter into this Agreement and that the persons
executing this Agreement have the authority to bind the party which they represent.
21. ADDITIONAL GOODS AND SERVICES
Vendor understands and agrees that City may, from time to time, request Vendor to provide additional goods
and services to City. When City desires additional goods and services from Vendor, the City shall notify
Vendor of such additional goods and services desired, as well as the time frame in which same are to be
provided. Only after City has approved Vendor's time and cost estimate for the provision of such additional
goods and services, has encumbered sufficient monies to pay for same, and has authorized Vendor, in
writing, to provide such additional goods and services, shall such goods and services be provided by Vendor
to City. A copy of the City's authorization documents for the purchase of additional goods and services shall
be numbered and attached hereto in the order in which they are approved by City.
22. TERM
Unless otherwise terminated in accordance with the termination provisions set forth in Paragraph 19
hereinabove, this Agreement shall be in effect from the Effective Date through February 28, 2021.
23. HEADINGS
All heading and sections of this Agreement are inserted for convenience only and do not form a part of this
Agreement nor limit, expand or otherwise alter the meaning of any provision hereof.
24. BINDING EFFECT
The parties, and their respective officers, officials, agents, partners, successors, assigns and legal
representatives, are bound to the other with respect to all of the covenants, terms, warranties and obligations
set forth in Agreement.
25. NO THIRD PARTY BENEFICIARIES
This Agreement gives no rights or benefits to anyone other than City and Vendor.
26. DEBARMENT AND SUSPENSION
26.1 The Vendor certifies by entering into this Agreement that neither it nor its principals nor any of its
subcontractors are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily
excluded from entering into this Agreement by any federal agency or by any department, agency or political
subdivision of the State of Indiana. The term "principal" for purposes of this Agreement means an officer,
director, owner, partner, key employee or other person with primary management or supervisory
responsibilities, or a person who has a critical influence on or substantive control over the operations of the
Vendor.
26.2 The Vendor certifies that it has verified the state and federal suspension and debarment status for all
subcontractors receiving funds under this Agreement and shall be solely responsible for any recoupment,
penalties or costs that might arise from use of a suspended or debarred subcontractor. The Vendor shall
immediately notify the City if any subcontractor becomes debarred or suspended, and shall, at the City's
request, take all steps required by the City to terminate its contractual relationship with the subcontractor for
work to be performed under this Agreement.
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DocuSign Envelope ID: D9A506C0-FCCC-4F7D-80F1-C7292938ADAE
120 Water Audit,Inc.
Utilities Department-2021
Appropriation#01-1420-00;P.O.#S03115
Contract Not To Exceed$22,368.00
27. IRAN CERTIFICATION
Pursuant to I.C. § 5-22-16.5, the Vendor shall certify that, in signing this Agreement, it does not engage in
investment activities within the Country of Iran.
28. ADVICE OF COUNSEL:
The parties warrant that they have read this Agreement and understand it, have had the opportunity to obtain
legal advice and assistance of counsel throughout the negotiation of this Agreement, and enter into same
freely, voluntarily, and without any duress, undue influence or coercion.
29. ENTIRE AGREEMENT:
This Agreement, together with any exhibits attached hereto or referenced herein, constitutes the entire
agreement between Vendor and City with respect to the subject matter hereof, and supersedes all prior oral
or written representations and agreements regarding same. Notwithstanding any other term or condition set
forth herein, but subject to paragraph 16 hereof, to the extent any term or condition contained in any exhibit
attached to this Agreement or in any document referenced herein conflicts with any term or condition
contained in this Agreement, the term or condition contained in this Agreement shall govern and prevail.
This Agreement may only be modified by written amendment executed by both parties hereto, or their
successors in interest.
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows:
CITY OF CARMEL, INDIANA 120 Water Audit, Inc.
by and through its Board of Public
Works and Safety
By: By:`
DocuSigned by:
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James uralnard, Presiding Officer Authorized Signature
Date:12/17/2020
David Sears
-DocuSigned by:
"i 11uun. buyid, Printed Name
bfaryDAnn'turke, Member
Date: 12/17/2020 Vice President Finance & Operations
5DocuSignetl by: Title
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w° 81-1714517
Lori'S. V1/atson, Member FID/TIN:
Date: 12/17/2020
Last Four of SSN if Sole Proprietor:
ATTEST:
Date: 12/15/2020
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12/Date:
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DocuSign Envelope ID: D9A506C0-FCCC-4F7D-80F1-C7292938ADAE
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Quote 1/4/21
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Customer: Carmel, IN Billing Contact:
Email: Phone:
Start Date: 1/4/2021 Address: City:
Term: 2 Months State: Zip Code:
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COVID Wastewater Monitoring Kit 32 per
month $699/sample
Monthly Recurring Subscription $22,368
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Fees are billed monthly on the Start Date above and are due net 30 days from the invoice date.
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Sample results will be made available to Carmel, IN within 72 hours of sample collection.
12OWater will provide 32 kits per month for Carmel, IN. Should Carmel, IN need additional samples they will be charged
at a rate of$699 per sample
This Order Form,together with the Master Services Agreement available at https:hs"120water.com/master-servaees-
Ageeme /(the"MSA"), shall become a legally binding contract upon the earlier of(a)the date both parties execute
the Order Form or(b)the date Customer initially began using the Services.Any capitalized word not otherwise
defined in this Order Form shall have the same meaning as set forth in the MSA.
120Water may reject this Order Form if: (1)the signatory below does not have the authority to bind Customer to this
Order Form,(2)changes have been made to this Order Form(other than completion of the purchase order information
120 ater Contract# EXHIBIT
A (1 of 17
DocuSign Envelope ID: D9A506C0-FCCC-4F7D-80F1-C7292938ADAE
1 ater
and signature block),or(3)the requested purchase order information or signature is incomplete or does not match our
records or the rest of this Order Form. Subscriptions are non-cancelable before their end of the Term.
IN WITNESS WHEREOF, the parties have caused this Order Form to be executed by their duly authorized
representatives.
Customer: 120Water
Signature Signature
Name: Name:
Title: Title:
Date: Date:
THIS AGREEMENT IS ACCEPTED BY:
120Water
"Customer"
Signature Signature
David Sears
Name Name
12/15/2020
Date Date
DMS17471295.3 EXHIBIT
A (2 of 17)
DocuSign Envelope ID: D9A506C0-FCCC-4F7D-80F1-C7292938ADAE
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Master Services Agreement
Last Modified:July 20,2020
This Master Services Agreement l"MSA"D(together with the Order,the"Agreement')is
an agreernent between.1.20 Water Audit,Inc.d/b/a.1.20Water l".1.20'W ter', we or"ups"1,.
and the customer identified on the Order("Customer'or"you").This Agreement
governs your access to and use of the Services lay defined below)and describes both
your rights and your obligations as part of using the Services.. Additionally,your ability
to purchase goods from or through us will be subject to our Terms of Sale as further
described herein.It is important that you read this Agreement carefully because you
will be legally bound to this Agreement. .1220'W ter only provides the Services to you
subject to this Agreement. By accepting this Agreement via an Order or by accessing
or using the Services,you agree to be bound by this Agreement(including any terms
within the accompanying Documentation,and any applicable policies and guidelines,
which are incorporated here by this reference). If you are entering into this Agreement
on behalf of a company or other legal entity,you represent that you have the authority
to bind such entity to this Agreement. In that case,the terms"Customer", you or
"your"shall also refer to such entity. If you do not have such authority,or if you do not
agree with this Agreement,you may not use the Services..1.20Water and Customer are
each also referred to hereunder as a"party"and collectively as the"parties
In consideration of the mutual covenants and agreernents contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged,the parties agree as follows:
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO
RESOLVE DISPUTES, IRATi-1EIR THAN JURY TRIALS OR CLASS ACTIONS.
i.
https://120water.com/master-services-agreement/ 12/10/2020
DocuSign Envelope ID: D9A506C0-FCCC-4F7D-80F1-C7292938ADAE
1viasLei our v lees tigI eezI1G111- 1 Lu w QIGI""
'Authorized Users'shall mean personnel authorized by Customer to use the Service
solely for the internal use of Customer„subject to tl'te terms and conditions of this
Agreement.
'Customer Data'shall mean all electronic data or information submitted by Customer
to the SaaS Services or otherwise provided by Customer to 1.20 i ater,
'Deliverables'means the deliverables or other work product produced by 1.20 at&or
ias subcontractors or other personnel in provision of SaaS Services or Professional
Services hereunder,including customizations.reports,alerts,data,and other
information,
'Documentation'means the user guides and specifications for the SaaS Services that
are made available from time to time by 1.20 ate tin electronic or tangible form,but
excluding any sales or marketing materials,
'Exhibits'shall mean any exhibits identified in an Girder,the terms,conditions,and
other provisions of which are hereby expressly incorporated herein by reference,
'Malicious Code'shall mean viruses,worms,time bombs.Trojan horses and other
harmful ffiles,scripts.agents or programs.
'12O Water Software Platform'shall mean tie platform consisting of the Site and any
software.operating systems, hardware and other technical resources used by
1.20 ate to provide the SaaS Services,
Order'shall mean 120 ater`us quote accepted by Customer via an ordering document
submitted to 120 ate or viia subscription on the Stine,to order any Services.which lies
hereby expressly incorporated herein by reference.
'Professional Services'shall mean any implementation,integration,consulting and
other related services described tin an Oder.
'Project Start Date'shall mean a date mutually agreed upon by the parties following
executuon of an Orden upon which date 120VWater shall commence provision of
implementation or other Professional Services.
"SaaS Services'shall mean the water test administration and reporting services made
available to web-based and mobile users vlia the 120VWater Software Platform hosted by
120VWater,
'Services'shall mean the SaaS Services and Professional Services collectively.
'Stine'shall mean the welbslite(sp accessible at https.//1..20water.com/dor any successor.
theretop.
'Subscription Start Date'shall mean the date on which 1.20 i ater shall make the SaaS
Services available to Customer as set forth in an applicable Girder.
'Subscription Term'shall mean the period of time during which Customer is
subscribed to the SaaS Services.as specified in an Girder.
https://120water.com/master-services-agreement/ 12/10/2020
DocuSign Envelope ID: D9A506C0-FCCC-4F7D-80F1-C7292938ADAE
lvlasier services Hgreemeni - izu wafer""
"Usage Data"shall mean statistical data related to Customers access to and use of the
SaaS Services and data derived from it,that is used by 12OVWater,including to compile
statistical and'performance information related to the provision and operation of the
Saas Services.
2. EE „, ,, 1 1L1" 1E THE
PAtT'1JE
2.1 12OVWater Responsibilities.During the Subscription Term,12OVWater shall make the
Saas Services avaitabte to Customer and shall provide maintenance and support to
Customer in accordance with its standard support poticies and procedures.12OVWater
will use commercially reasonable efforts to maintain the Saas Services°availability,
except for planned downtime for maintenance or upgrades;or any unavailability
caused by circumstances beyond 12OVWater's reasonable control.12OVWater reserves
the right to modify the Saas Services at any time.The parties may,from time to time,
execute an Order describing Professional Services that 12OVWater shall provide to
Customer,the duration of such Professional Services if applicable,the compensation
to be paid for the Professional Services;and any other terms appticabte to the project.
A fist of specific deliverables;a timetable,and/or a detailed specification may be
attached as Exhibits to any Order.
2.2 Customer Responsibilities.Customer is responsible for all activities that occur in
Customers account.(s).Customer shall: (a) have sole responsibility for the accuracy,
quality,integrity,legality,reliability,and appropriateness of all Customer Data;(ID)
prevent unauthorized access to,or use of,the Saas Services,and notify 12OVWater in
writing immediately upon becoming aware of any such unauthorized access or use;(c)
comply with all applicable laws and regulations in using the Saas Services;and(d)
procure for 12OVWater at Customers sole expense alb rights and consents necessary for
12OVWater to access and use all Customer Data and all access and use rights necessary
to interface with Customers software,hardware,and other systems.Customer is solely
responsible for ensuring:(i)that only appropriate Authorized Users have access to the
Saas Services,and(ii)confidentiality and proper usage of passwords and access
procedures with respect to logging into the Saas Services.Customer is solely
responsible for all acts and omissions of the Authorized Users,and for ensuring that the
Authorized Users comply with this Agreement and with the Terms of Use.
2,3 Use Restrictions.Customer shall use the Saas Services solely for its internal
business purposes as contemplated by this Agreement and shall not:(a)license,
sublicense,sell,resell,rent,lease,transfer,assign,distribute,time share or otherwise
commercially exploit or make the Saas Services available to any third party except as
contemplated by this Agreement;(b)send via,or store within,the Saas Services
infringing;obscene,threatening;defamatory,fraudulent,abusive,or otherwise unlawful
or tortious material;inctuding material that is harmful to children or violates third party
'privacy rights;(c)send via the Saas Services any unsolicited commercial or non-
commercial communication;(d)send via,upload to,or store within the Saas Services
any Malicious Code;or(e)attempt to gain unauthorized access to the Saas Services or
its related systems or networks. in addition,Customer shall not directly or indirectly: (i)
remove any notice of proprietary rights from the Saas Services or 12OVWater Software
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master 3crviocaAgrccomcoz- /zo water^~
Platform;(iVclecompile,everseengineer,mattempt to derive the source code or
underlying ideas m algorithms or any part cv the SaaS Services o,12Owa»erSoftware
Platform(except to the limited extent applicable laws specifically prohibit such
restriction);(iii)copy,modify,translate or otherwise create derivative works of any part
or the SaaS Services o,12Owa»e,Software Platform;(iv)send,store o,process inthe
SaaS Services or 120Water Software Platform any personal health data,credit card data,
personal financial data o,other such sensitive o,personal data;(v)use any or
120Water's Confidential Information(defined below)to create any service,software,
documentation mdata that i,similar o,competitive»o any aspect or the SaaSServices,
(vi}interfere o,attempt»o interfere with the proper working or the SaaS Services o,any
activities conducted on the SaaS Services or 120Water Software Platform,or modify
another weud»e,oa,»o falsely imply that iti,associated with the SaaS Services;o,Nii}
permit any third party to engage in any of the foregoing proscribed acts set forth in this
Section 2.3(with the restrictions set forth in this Section 2.3.collectively,referred»oa,
the*Use Re,trichon,l.
2.4SaaS Services Platform.12Owa»er and its third party service providers will use
commercially reasonable efforts to maintain the availability of the SaaS Services.
12OVVa»er may perform routine o,other maintenance at times and for durations
established by 120Water in its sole discretion,during which time(s)120Water may take
the SaaS Services down to conduct necessary maintenance or repairs,or to implement
upgrades.In the event of an error or outage of the SaaS Services,120Water will use
commercially reasonable efforts»o restore the SaaS Services to working order.
Customer agrees that 120Water is not responsible to provide support for any issues
resulting from problems,errors o,inquiries related»o Customer's systems o,hardware
o,Customer Data.
2.5 Beta Services.From time»o time,12OVVa»er may invite Customer»o try Beta
Services atno charge.Customer may accept o,decline any such trial inCustomer's
sole discretion.Beta Services will be clearly designated as beta,pilot,limited release,
developer preview,non-production,evaluation or by a description of similar import.
Beta Services are for evaluation purposes and not for production use,are not
considered*Services*under this Agreement,are not supported,and may ue subject»o
additional terms.Unless otherwise stated,any Beta Services trial period will expire upon
the earlier of one year from the trial start date or the date that a version of the Beta
Services becomes generally available. 120Water may discontinue Beta Services at any
time in12Owa»eb sole discretion and may never make them generally available.
120Water will have no liability for any harm or damage arising out of or in connection
with Beta Service.
2.s Purchase orGoods. Your purchases or goods,including without|imitadon'water
testing kits and water pitcher filters,from 120Water are governed by the Terms of Sale
available at which are incorporated herein by
reference.
s. FEES Ft PAYMENT
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WEISLCI JCIVLUCS ttgrucmcm w -"-
3.1 Servic:e Fees;Taxes,120Water will invoice Customer for Servic:es,as set forth in the
applicable Order or as otherwise agreed by the parties in writing.Exc:ept as otherwise
specified in an Order,fees are based on the Servk:es purchased and not actual usage;
payment obligations are non-canc:ellable,fees paid are non-refundable,and the
Servic:es purchased c::annot be decreased during the relevant Subscription Term.
Customer shall be responsible for payment of all taxes due in connection with the
Servic:es provided hereunder(other than taxes owed by 120Water based on its inc:ome),
whether or not c:ollec:ted by 120Water,120Water may c:ollect suc:h taxes from
Customer,and Customer shall remit to 120Water all applicable taxes required to be
c:ollec:ted by 120Water„or if suc:h taxes have previously been paid by the Customer,
provide 120Water with the appropriate documentation of suc:h payments. 120Water
may c:hange the fees applicable to the Servic:es upon thirty(30)days prior notic:e,
provided,that,any suc:h change shall only take effect upon renewal of a Subscription
Term, Customer may add subscriptions for SaaS Servic:es during a Subscription Term
at the same pricing as the underlying subscription pricing set forth in the most rec::ent
Order,prorated for the portion of that Subscription Term remaining at the time the
subscriptions are added,and any added subscriptions will terminate on the same date
as the underlying subscriptions.For all other additional goods or servic:es purchased by
Customer during the Subscription term,suc::h purchases will be made at the then
c:urrent pric::es of suc::h goods or servic:es.
3.2 Overdue Payments.Customer's failure to pay fees as set forth herein shall
constitute a material breac:h of this Agreement. Any fees hereunder not paid when due
will be subject to a late charge of one and one-half perc:ent(1 1/2%)per month on the
unpaid balanc:e or the maximum rate allowed by law,whichever is less, If Customer's
ac:c:ount is fifteen(15)days or more overdue,120Water may,in addition to any of its
other rights or remedies,suspend Customer's ac:c:ess to the SaaS Servic:es and/or
suspend provision of Professional Servic:es until suc:h amounts are paid in full. If suc:h
failure to pay has not been c:ured within thirty(30)days of the due date,then upon
written notic:e 120Water may terminate this Agreement and any or all outstanding
Orders.
3.3.Future Functionality.The Parties agree and acknowledge that Customer's
purc:hases hereunder are not contingent on the delivery of any future Servic:e
functionality or features,or dependent on any oral or written public:comments made
by 120Water regarding future functionality or features of any Servic:e.
4, PP111011ETA, ( ocns
4.1 Reservation of Rights.Subject to the limited rights expressly granted hereunder„
120Water reserves all rights,title and interest in and to the SaaS Servk:es and 120Water
Software Platform,including all software,technology and other materials associated
therewith,.all Documentation and c:ontent(excluding the Customer Data),and all
c:opies„modifications and derivative works thereof,and all 120Water trademarks,
names,logos,and all rights to patent,c:opyright trade secret and other proprietary or
intellectual property rights therein.No rights are granted to Customer hereunder other
than as expressly set forth herein.As between 120Water and Customer,Customer
exclusively owns all rights,.title and interest in and to all Customer Data.Customer
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IVIUSLer on-vi es tigree1I1eI1L- 1GU WULer- -
hereby grants 1.20Water a worldwide,non-exclusive,royalty-free,fully paid-up license
to use,reproduce,perform,display,modify,and distribute the Customer Data in
connection with providing the Services to Customer hereunder.1.20Water may use the
trademarks and trade names of Customer in connection with provision of the Services.
4.2 Feedback.If Customer proviides or otherwise makes available to 1.20Water any
feedback, suggestions„ recommendations,data,or other input regarding the Serviices
or resulting from Customers use thereof("Feedback"), Customer hereby grants to
1.20Water a perpetual,irrevocable,royalty-free right and license to use such Feedback
for any purpose,including to iimprove and enhance the Serviices or any component
thereof,to develop new features or functionality,and to otherwise use and exploit
such Feedback for 1.20Waters busiiness purposes.Customeracknowledges that any
1.20Water products or materials incorporating any such Feedback shall be the sole and
exclusiive property of 1.20Water.
4.3 Improvements:Deliiverables.1.20Water shall own all rights,title and interest,
including all intellectual property rights,in and to any improvements to the Sall a7l.S
Serviices and 1.20Water Software Platform, and in and to any Deliverables or new
programs,upgrades,modifications or enhancements developed by 1.20Water in
connectiion wiith rendering the Services to Customer,even when Deliverables,
refiinements or improvements result from Customer's request.To the extent,if any,
that ownershiip in such Deliverables,refiinements or improvements does not
automatically vest in 1.20Water by virtue of this Agreement or otherwiise,Customer
hereby transfers,and shall transfer,to 1.20Water all rights,title,and interest which
Customer may have,and such transfer is irrevocable,iirreversiible and binding on
Customers successors.
r; f1 '"IIIIII)I 1 TIlll LIIIl
5.1.Defiiniitiion of Confidential Information.As used herein,"Confidential Information"
means all confidential and proprietary information of a party("Disclosing Party")
diisclosed to the other party("Receiving Party")that(a)if disclosed orally is designated
as confidential at the tiime of disclosure,(II:))if disclosed in writing is marked as
"Confidential"and/or"Proprietary"or(c.)that reasonably should be understood to be
confidential given the nature of the information and the circumstances of disclosure.
Customers Confidential Information shall consist of the Customer Data. 1.20Water°s
Confidential Information includes any nonpubliic information relating to the Sa7la7l.S
Services or the software,Orders,pricing,technology or content underlying the Sa7la7l.S
Services,or relating to any other of 1. 0Water s or its business partners`products or
services(including any beta versiion of a service),software,technology,customers,
busiiness plans,and other busiiness affairs.Notwithstanding the foregoiing,each party
may diisclose the existence and terms of this Agreement,in confidence,to a potential
purchaser of or successor to any portiion of such party's business resultiing from the
reorganiizatiion,spin-off,or sale of all or a portiion of all of the assets of any busiiness,
division,or group of such party.Confidentiial Information shall not include any
information that(i)is or becomes generally known to the public without breach by the
Receiving Party of any obligation owed to the Disclosing Party;(iiii)was known to the
Receiviing Party prior to its disclosure by the Disclosing Party wiithout breach of any
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iviabLui ci vIl;Gbricciijcii - I LU VV aci--
obligation owed to the Disclosing Party;(iii)was independently developed by the
Receiving Party without use of the Disclosing Party's Confidential Information;or(iv)is
received from a third party without breach of any obligation owed to the Disclosing
Party.
5.2 Confidentiality,The Receiving Party shall not disclose or use any Confidential
Information of the Disclosing Party for any purpose outside the scope of this
Agreement,except with the Disclosing Party's prior written permission or if required by
applicable taw or judicial order.The Receiving Party shalt use the same degree of care
to protect the Confidential Information as it uses to protect its own information of a
confidential and proprietary nature,but in no event shalt it use less than a reasonable
degree of care.1.20Water may disclose Customers Confidential Information to those
of its employees and contractors who need to know such information for purposes of
performing the Services.Notwithstanding the foregoing,and as permitted by
applicable taw,1.20Water shalt be permitted to retain Customer Data and Usage Data
and use the same for statisticaL,analytical,and simiLar purposes internally,through
publications,and with 1.20Water's other customers;provided,that any distribution to
third parties of the results of such usage will include Customer Data or Usage Data in
aggregate form only and wilt not identify Customer or its Authorized Users as the
source of any such data.Further,120Water may store,reproduce,distribute,create
derivative works(including compilations and statistical summaries and analyses),
transmit,display and otherwise make available certain test results(and related data)and
location information to third party individuals and organizations as reasonably
necessary in order for 1.20Water to perform Services hereunder.
5.3 Compelled Disclosure; Remedies.If the Receiving Party is compelled by taw,an
order issued by a judge or public competent authority to disclose Confidential
Information of the Disclosing Party,it shall provide the Disclosing Party with prior
notice of such compelled disclosure(to the extent legally permitted)and reasonable
assistance,at Disclosing Party's cost,if the Disclosing Party wishes to contest the
disclosure.If the Receiving Party discloses or uses(or threatens to disclose or use)any
Confidential Information of the Disclosing Party in breach of confidentiality protections
hereunder,the Disclosing Party shalt have the right,in addition to any other remedies
available to it,to seek to file a Lawsuit to enjoin such acts.
5.4 Survival The Confidentiality obligations as are set forth in this Section shalt remain
in force and effect at all times during the term hereof and(i)with respect to
Confidential Information that constitutes a trade secret under applicable law,for so
Long as such trade secret status is maintained(but no less than the period described in
subclause(ii)hereof);and(ii)with respect to Confidential Information that does not
constitute a trade secret,for five(5)years after termination or expiration of this
Agreement(or for the maximum amount of time permitted under applicable law,if
shorter than five(5)years).
6.
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1V1dSLCl OCl V 1L:CS Hg1CC111C11L- 1 GU VV MCI" '
6.1.Customer arrant es.Customer represents and warrants that:(a)the Customer
Data,and the use thereof by.:120'i ater and its service providers,sha((not lnfrnnge on
any copyright, patent,trade secret or other proprletai., right hed by any third party; (b)
Customer sha((not use the Ser✓lces In a manner that v'aoVates any Vaw„and(c)
Customer sha((procure aUG.nights and consents necessary to enah e.1.20'" ater and its
third party service providers to access and use afl Customer Data and a((access and
use nights necessary to'interface with Customer's software,hardware and other
systems.
6.2 1.20'i ater an-ant'¢es.120' ater represents and warrants that:(a)the functlonatl.iity
of the SaaS Services w'i((not be materia((y decreased during a Subscr'nptlon Term:and
(b11.20'i ater sha((take commerc'aa((y reasonable measures to protect against the SaaS
Services contalnlnq or transm'Bttlnq rnafiic'lous Code:1.20'i ater represents and warrants
that the Profess'iona(Services dexc(udlnq any Services provided by third parties)wilt be
performed in a professlonat and workmardke manner in accordance with genera(ty
accepted'industry standards(such warranty,the"Ser✓lce arranty").Customer must
report to1.20'i ater In wriit'anq any fa'it.wre of the Profess'Wonatl.Services to materlaHy
conform to the Service arranty wlthln 90 days of performance of such Professlona(
Services In order to receive warranty remedies..For any breach of the Service arranty,
Customer's exc LAs'ive remedy,and 1.20'i ater"s entire V'iabliifiity,sha((be the re--
performance of the Profess'iona(Services,and,if 1.20'i ater its unabtl.e to re-perform the
Professlonatl.Services as warranted within thirty(30)days of receipt of notice of breach,
Customer sha((be entitled to recover the fees pad to.1.20'" ater for the deficient
Professional Ser✓lces.
6,3 rhlyd party software usage and obl'lgatlons are governed under the appl'lcabtl.e third
party software terms and cond'wtlons,and Customer expressly acknowledges that
1.20' ater has no obit gatlons with regard to third party software or services..In the
event1.20'i ater its required to'integrate with or otherwise interface with third party
software,Customer agrees to secure at(rights necessary to enabdi1.20'i ater to
perform such work,and Customer represents,warrants and covenants that It has or
will secure at Customer's sole cost aUG.access and incense roghts necessary to enable
1.20' ater to perform its obtl.'agatlons hereunder.NOT"..I HS.1.AINDIING ANYTHING IN
..I..HE AGREEI ENT..L..GTHE CON..I..RARY,.1.20,;A..I..ER InAKES NO REPRESENTATIONS OR
ARRAN..1...1ES,EXPRESSER II'i PLIED,'...I..I...H REGARD..I...GTHIRD PARTY SERVICES GR
SGFT'i ARE,INCLUDING ARRANTIESOF rnERCHANTABIIL.ITY,FITNESS FOR A
PARTICULAR PURPOSE,NON-IINFRIINGEI ENT,AND TITLE..CUS..I.GrnER EXPRESSLY
ACKNO LEDGES THAT.1.20'; ATER HAS NO LIABILITY,DIRECT. OR IINDIRECI. AND
REGARDLESS OF THE THEORY OF L.Aii FOR THIRD PAFiLITY SERVICES AND
SOFT", ARE.
6,4 EXCEPT FOR THE ARRANTIES EXPRESSLY STATED HEREIIN,.1.20'",'IA..I...ER
PROVIDES AII...Il...SERVICES AS--IS, ITHOUI...'...ARRANTV OF ANY KIND,ANDAND1.20'i ATER
DISCIIL.AIrnSAII...II...OTHER ARRAN IES, EXPRESSGRII PLIED,INCLUDING THOSE
REGARDING I iERCHAN ABIIL.ITY,TITLE,NON-IINFRIINGEI EINL.,AND FITNESS FOR A
PARTICULAR PURPOSE..
6.5 Customer acknowledges and agrees that the SaaS Services,the Professiiona(
Ser✓lces,the1.20'i ater Software Platform,Del'lverabtl.es,or any other materials or
services provided hereunder are'intended to provide Customer with a means of
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master Services L-1greement - 1 LU W Baer""
sarrnpfl'iing,testing,and monitoring water for conttamiiinarntts.1.20. ater uses third party
tabs and service providers to perform certain components of the Services and,white
1.20. ater endeavors to maintain retatt'ionships with deperndabte,accurate and tt'imety
third party service providers,1.20, ATER DOES NOT CONTROL SUCH SERWUC.E
PRO'WUDERS,AND THEREFORE.HEREBY DISCILAUMS ALL REPRESENTATIONS,
ARRANTUES,AND ILUAEIUILUTY FOR ANY UNACCURATE,UNTUME.LY„OR OTHER.OSE.
ERRONEOUS DE.ILIVE.RABILE.S UNC.Lfl.1DUNG DATA,ALERTS,OR INFORMATUON
ATTRUBUTABILE.TO SUCH SERVICE.PRO'WUDE.RS.
6.6 Understanding that 1.20. ater is not responsibie for any contaminants or other
harmfui conditions present in water or other matter'iads tested hereunder,Customer
assumes fuit and soie responsib'ii'itty for aii risks associated therewith,and with
Custtomer's use of or rei'iance on 1.20 ater providing the SaaS Services,the
Professionafl Services,the 1.20. ater Software Pflattforrrn,Dei'iverabies,or any other
rvaatter'iafls,both known and unknown,inherent or otherwise,reiatted thereto,errors and
omissions in providing them,and Customer's enjoyment tthereof,Customer hereby
voiunttar'iiy accept the risks associated with 1.20. aters provision of the SaaS Services,
the Professionai Services,the 1.20 ater Software Piattforrrn, Dei'iverabies,or any other
rnatter'iais.
6.7 Acknowiedg'ing that such risks exist,CUSTOMER HEREBY RELEASES AND
DISCHARGES 1.20o ATER,UTS OFFUCERS,REPRESENTATIVES,DURECTORS,
SHAREHOLDERS,SUBSUDUARUE.S.AFFILUATE.S,PARTNERS,LUCENSORS,AGENTS AND
EMPLOYEES,RELATED E.NTTUE.S,SUCCESSORS AND ASSIGNS AND EACH OF THEM
(HEREONAFTER FOR PURPOSES OF THIS SECTION 6..7 AND SECTION 7.1.INDUVIDUAILILY
AND COLLE.CTUVE.ILY REFERRED TO AS'1.20'o. ATE.R'1,FROM ANY AND ALL ACTUAL OR
ALLEGED DEMANDS,(LOSSES,C.LAUMS,DAMAGES,SUITS,STRICT ILUAEIUILUTY ACTIONS,
CLASS ACTIONS,NEGLIGENCE ACTIONS,UMPII ED', ARRANTY ACTIONS,EXPRESS
ARRANTY ACTIONS,EXPENSES,ATTORNEY FEES,AND ILUAEIUILUTY REILATUNG TO ANY
INJURY,DEATH,OR DAMAGES TO ANY PERSON OR PROPERTY('o',HETHER TANGIBILE.
OR INTANGIBLE),UNC.LUDUNG ANY DATA,SOFT.'.ARE,HARD'I'.ARE,NETI ORKS,
SYSTEMS,CUSTOMIZATIONS,OTHER UNFORMATUON,PERSON OR PROPERTY
SUFFERED OR CILAUMED TO HAVE.BEEN SUFFERED', HUCH ARISES OUT OF OR US
RELATED ON ANY MANNER TO THE POSSESSION OR USE OF THE SPAS SERVICES,THE.
PROFESSIONAL SERVICES,THE 1.20',ATER SOFTWARE.PLATFORM, DE.II VE.RABILE.S, OR
ANY OTHER MATE.RUAILS PROVIDED HEREUNDER,INC.LUDUNG', UTHOUT LUMITATUON,
ANY CLAIM THAT THE.ACT OR OMUSSUON COMPLAINED OF', AS CAUSED SOLELY OR
ON PART BY THE NEGI GENC.E.ON ANY FORM OF 1.20 ATER.
7. lU Y0'11 III3II i' It 11 lU F 11 :"Ir r y���
7.1.Customer further agrees to INDEMNIFY,HOLD HARMLESS,AND DEFEND in any
action or proceeding,1.20Water from and against aflfl actual or alleged demands,
damages,losses,claims,suits,strict fliabil'uty actions,negligence actions,irrrnpflied
warranty actions,class actions,liability relating to any Injury,death,or damages to any
person or property,express warranty actions,expenses,and attorney fees("Clairrrns")for
or relating to the possession or use of the SaaS Services,the Professional Services,the
1.20Water Software Platform,Del'uverabfles,or any other rrriateriafls provided hereunder,
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1vlasler cervices I-igreemern- izu wkner•"'
or their failure,or for Customer's failure to comply with the terms of this Agreement,or
from any allegation that.Customer Data or 120Wat.er°s use thereof,infringes or
misappropriates a third party's patent,copyright,trademark or trade secret or other
propriietary right,regaroltess of whether the act or omission complained of was caused
solely or in part by the negligence in any form of 120Water.
7.2 120Water shall defend,indemnify and hold Customer and its respective officers,
directors,and employees,harmless agaiinst any Voss,damage or costs(including
reasonable attorneys'fees)incurred in connection with claiims,demands,suits or
proceedings("Damage Claims")made or brought against Customer by a third party
allegiing that Customers use of the SaaS Services within the scope of this Agreement
infringes or misappropriates such thiird party's United States patent,copyright,
trademark or trade secret.,provided,however,that 120Water shoat(have no such
indemnificatiion obligation to the extent such infringement:(a)relates to use of the
SaaS Services or any Deliverable in combiinatiion with other software, data products,
processes,or materials not provided by 120Water and the infriingement would not have
occurred but for the combination;(Ib)arises from or relates to modiificatiions to the
SaaS Services or any Deliverable not made by 120Water;(c::)relates to Customer Data
or any third party product or service,or(d)where Customer continues the activity or
use constiitutiing or contributiing to the infringement after notiifiication thereof by
120Water.
7,3 Procedure,As an express conditiion to the iindemnifyiing party's obVugatiion under this
Sectiion 7,the party seeking iindemnifiicatiion must:(a)promptly notify the indemnifying
party in writing of the applucabVe Claim for which indemnification is sought(except that
any delay on the part of the iindemniifiied party in providing such notice shall not relieve
the indemnifying party of its indemnification obligation except to the extent the it is
prejudiiced thereby);and(b)provide the indemnifying party with all reasonable non-
monetary assistance,iinformatiion and authoriity reasonably requiired for the defense
and settlement of such Claim.
a,. LIIa„u IIT/ II- II S
8..11i..'im tat'ion of Liability.SUBJECT-I-OSECTION 8.3 HEREOF,ON NO EVENT SHALL
EITHER PARTY'.S AGGREGATE V...VAIE3IILITY ARISING OUT OF OR RELATED TO THIS
AGREEMENT,WHETHER ON CONTRACT,TORT OR UNDER ANY OTHER THEORY OF
V...VAIB LIITY,EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM
CUSTOMER HEREUNDER IN THE TWELVE(12)MONTHS PRECEDING THE INCIDENT
GIVING RISE TO V...IIAIE3IIV...IITY.
8.2 Exclusion of Consequential and Related Damages,SUBJECT TO.SECTION 8..3
HEREOF,ON NO EVENT.SHALL EITHER PARTY HAVE ANY I...IIAIBIIV...IITY TO THE OTHER
PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT,.SPECIIAV....,IINCIIDENTAV....,
PUNIITIIVE,CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE
HO40W'EVER CAUSED,(INCLUDING WITHOUT V...IIMITATIION DAMAGES FOR LOSS OF
GOOD WILL WORK STOPPAGE,DATA V...O.S.S.LOST PROFIT OR COMPUTER FAILURE,
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oci vic icciiicii - ILA/vv aLcI--
INCURRED BY EITHER PARTY OR ANY THIRD PARTY,WHETHER IN CONTRACT,TORT
OR UNDER ANY OTHER THEORY OF LIABILITY,WHETHER OR NOT THE PARTY HAS
BEEN ADVISED OF THE POSSVBIV...ITY OF SUCH DAMAGES.
8.3 THE RESTRICTIONS ON THE TYPES AND AMOUNTS OF DAMAGES FOR WHICH A
PARTY MAY BE LIABLE HEREUNDER SHALL NOT APPLY TO CUSTOMER'S LIABILITY
FOR BREACH OF 120WATER'S PROPRIETARY RIGHTS HEREUNDER AND AMOUNTS
PAYABLE PURSUANT TO CUSTOMER'S INDEMNRCATION OBLIGATIONS
HEREUNDER.
:-
9. TE : T
N,
N
9,1 Term.This Agreement commences on the earlier of(a)the date both parties
execute an initial Order or(b)the date you initially begin using the Services,and
continues through the expiration of all Orders in effect between the parties hereunder
(including any renewals as set forth below)unless earlier terminated as set forth in this
Section 9(the'Term"),Subscriptions to the SaaS Services commence on the
Subscription Start Date and continue for the Subscription Term specified in the
applicable Order.Thereafter,the Subscription Term shall automatically renew for
successive one(1)year renewal terms unless a party provides the other party notice of
its intent not to renew at least thirty(30)days in advance of the end of the then-
current term.Professional Services shall commence on the Project Start Date and shall
continue until such Professional Services are completed.
9.2 Termination for Cause.A party may terminate this Agreement for cause upon thirty
(30)days°written notice of a material breach to the other party if such breach remains
uncured at the expiration of such thirty(30)day period;provided,however,that
120Water may terminate this Agreement or the applicable Order for non-payment in
accordance with Section 3.2 hereof.120Water may immediately terminate this
Agreement for cause if Customer breaches any of the Use RestriCions,This Agreement
may also be terminated by either party immediately upon written notice to the other
party if the other party:(a)becomes insolvent,(b)voluntarily commences any
proceeding or files any petition under applicable bankruptcy laws,(c)becomes subject
to any involuntary bankruptcy or insolvency proceedings under applicable laws,which
proceedings are not dismissed within thirty(30)days,(d)makes an assignment for the
benefit of its creditors,or(e)appoints a receiver, trustee, custodian or liquidator for a
substantial portion of its property,assets or business. In addition,120Water may
terminate this Agreement,in whole or in part,or cease provision of Services if required
to comply with applicable law or regulation. Termination shall not relieve Customer of
the obligation to pay any fees accrued or payable to 120Water prior to the effective
date of termination.Not in[imitation of any other remedies that may be available to
120Water, upon any termination for cause by 120Water,Customer shall remain
obligated to pay all fees owed for the remainder of the Subscription Term,all of which
fees shall become immediately due and payable in full.
9.3 Customer Data. Following the termination or expiration of this Agreement,
Customer shall have thirty(30)calendar days to access its account and
download/export Customer Data.Upon expiration of such thirty(30)calendar day
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period,120Water shall convert Customer's account to an inactive status.120Water
inay,but shall not be obligated to,delete all Customer Data after Customer's account
converts to inactive status.
AL 111.
10.1 Relationship of the Parties;Customer Name and Logo.The relationship between
the parties created by this Agreement is one of independent contractors and neither
party shalt have the power or authority to bind or obligate the other except as expressly
set forth in thus Agreement.Thus Agreement does not create a partnership,franchise,
joint venture,agency,fiduciary,or employment relationship between the parties.There
are no third-party beneficiaries to this Agreement.Customer hereby agrees to:(a)
allow 120Water to use Customer's name and logo in 120Water`s customer List,on
12OWater`s website,and in 120Water`s marketing materials and(b)subject to
Customer's review and approval,which approval shall not be unreasonably withheld or
delayed,allow 120Water to reference Customer in a press release that announces
Customer's decision to use 120Water Services.
10.2 Assignment. Customer may not assign any of its rights or obligations hereunder,
whether by operation of law or otherwise,without the prior written consent of
120Water.Notwithstanding the foregoing,Customer may assign this Agreement in its
entirety(including all Orders),without consent of 120Water,in connection with a
merger,acquisition,corporate reorganization,or sate of all or substantially all of its
assets not involving a direct competitor of 120Water.Any attempt by Customer to
assign its rights or obligations under this Agreement in breach of this Section shalt be
void and of no effect.120Water may freely assign this Agreement and its rights and
obligations hereunder, or may delegate or subcontract to third parties any of its duties
and obligations hereunder,without the need for the consent of Customer.Subject to
the foregoing,this Agreement shall bind and inure to the benefit of the parties,their
respective successors and permitted assigns.
10.3 Governing Law.This Agreement shall be governed exclusively by the laws of the
State of Indiana,without regard to its conflicts of laws rules.
10.4 Modifications. 120Water may make changes to this Agreement from time to time.
If 120Water makes a material change to this Agreement,120Water will inform
Customer by e-mait to the e-mail addressees)noted on the Order(or subsequently
designated by Customer in writing as a contact for notifications from 120Water),or
through a banner or other prominent notice within the SaaS Services,or through the
120Water support platform.If Customer does not agree to the change,Customer must
so notify 120Water by e-mail to supportfal20water.coirn within thirty(30)days after
120Water's notice.If Customer so notifies 120Water,then Customer wilt remain
governed by the most recent version of this Agreement applicable to Customer until
the end of the then-current period of the Subscription Term and the updated terms
shall apply upon the commencement of the subsequent period of the Subscription
Term. Notwithstanding the foregoing,of 120Water is required to change this Agreement
in order to remain compliant with applicable law,and Customer does not agree to
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such change,120Water may terminate the Customers Order,in which case 120Water
shall provide Customer with a pro-rated refund of any pre-paid fees for Service not
performed by the effective date of termination.
10,5 Force Majeure.On no event will 120Water be liable or responsible to Customer,or
be deemed to have defaulted under or breached this Agreement,for any failure or
delay in fulfilling or performing any term of this Agreement,when and to the extent
such failure or delay is caused by any circumstances beyond 120Water"s control(a
"Force Majeure Event") including acts of God,flood,fire,earthquake or explosion,
pandemics,endemics,war,terrorism,invasion,riot or other civil unrest,embargoes or
blockades In effect on or after the date of this Agreement,national or regional
emergency,strikes,labor stoppages or slowdowns or other industrial disturbances,
passage of law or any action taken by a governmental or public authority,or national
or regional shortage of adequate power or telecommunications or transportation.
120Water may terminate this Agreement if a Force Majeure Event continues
substantially uninterrupted for a period of 30 days or more,
10.6 Dispute Resolution and Binding Arbitration.As set forth in this Section 10.6,you,
your and similar variants shall mean Customer and all Authorized Users and others
using the Services under or In connection with Customer's account,Sections 10,6.1
through 10.6.3 shall apply only to a Customer that is a legal entity,not an individual
consumer Customer.Dispute resolution between an individual consumer Customer
and 120Water shall be governed by Sections 10.6.4 through 10,6.11 only,
10.6.1 In the event of a dispute,the parties agree to enter into good faith discussions
which shall take place within fifteen US)days of written notice from either party of a
dispute.
10.6.2 Either party may refer the dispute to non•-binding mediation in the event that the
parties have not resolved a dispute referred to them for resolution within thirty(30)
days.The parties agree that they shall attempt In good faith to resolve the dispute
under the fast track mediation rules of procedure of the International Institute for
Conflict Prevention&Resolution("CPR")in effect as of the date the mediation is
initiated.Unless otherwise agreed,the parties shall select a mediator from the CPR
Panels of Distinguished Neutrals,Of the parties cannot agree on the selection within
fourteen(14)days after the matter has been referred to mediation,they will defer to
the CPR to select a mediator pursuant to the CPR rules.The cost of the mediator shall
be borne equally by the parties.
10,6.3 Any dispute not resolved within thirty(30)days(or within such other time period
as may be agreed by the parties In writing)after appointment of the mediator,shall be
finally resolved by arbitration administered by the American Arbitration Association
("AAA")In accordance with the following section of this Section 10,6.
10.6.4 YOU AND 120WATER ARE.AGREO:::ING TO GOVE.kW ANY RIGHTS TO LITIGATE
CLAIMS IN A COURT OR BEFORE.A JURY,OR TO PARTICIPATE ON A CLASS ACTION
OR REPRESENTATIVE.ACTION WOTH RESPECT TO A CLAIM,OTHER RIGHTS THAT
YOU WOULD HAVE.OF YOU WENT TO COURT MAY ALSO BE.UNAVAII...ABLE.OR MAY BE.
LIMITED IN ARBITRATION.
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10.6,5 SUBJECT TO SECTIONS 10,6,1 AND 10,6.2,ANY CLAIM,DISPUTE OR
CONTROVERSY(WO...yET.HER ON CONTRACT,TORT OR OT.HERWVSE,WHETHER PRE-
EXOST"ONG, PRESENT OR FUTURE,AND ONCLUDONG STATUTORY,CONSUMER
PROTECTION,COMMON LAW,ONTENTOONA0_TORT ONJUNCTIVE AND EQUITABLE
CLAMS) BETWEEN YOU AND US AROSONG FROM OR RELATING ON ANY WAY TO"V"HOS
AGREEMENT" WOLL BE RESOLVED EXCLUSOVELY AND FINALLY BY BONDONG
ARB T RATOON.
10.6.6 The arlbiltrat'uon Wiill be adm'unlistered by the MA in accordance with the
Consumer Arlbiltratiion Rules or the Commercial Arbitration Rules and Med'uatiion
Procedures,as applicable(the"AAA Rules"),each as then On effect(the A.. Rules are
available at httlps://vvvvvv.adr..orq/Rules or by calling the AAA at 1-800-778-7879,)The
Federal Arlbilltratuon Act will govern the'interpretation and enforcement of thiis section.
10,6.7 There shall be one arlblitrator agreed to by the Ipertiies within thiirty(30)days of
receipt by respondents of the request for arbitration or,if the parties cannot agree to
an arbitrator,the AAA will appoint one, The place of arbitration shall be Ondiianalpolliis,
Ond'uana,
10,6,8 The arlblitrator will have exclusiive authorlity to resolve any dispute relaying to
arlblitral5'ul'uty and/or enforceability of thiis arbitration provision, iincludiinq any
unconsc'uonal5'ul'uty challenge or any other challenge that the arbitration provision or the
agreement its void,voiidalble or othervviise'unvaliid. The arbitrator will be empowered to
grant whatever relief would be available lin court under lava or in equity,Any award of
the arlbiitrator(s)Win be final and binding on each of the parties,and may be entered as
a Judgment lin any court of comlpetentjuriisdictiion.
10.6.9 Vn any dispute,NEITHER YOU NOR 120WATER WILL BE ENTITLED TO JOIN'OR
CONSOLODATE CLAIMS BY OR AGAINST OTHER CUSTOMERS VN COURT OR VN
ARBITRATION OR OTHERWOSE PARTOCVPAV"E VN ANY CLAOM AS A CLASS
REPRESENTAT"OVE,CLASS MEMBER OR ON A PROVAV"E ATTORNEY GENERAL CAPACITY
The arlbiitral triilbunal may not consolidate more than one Iperson"s claliovos,and may not
othervviise preside over any form of a representative or class proceeding,The arlbiitral
triilbunal has no power to consider the enforceability of thus class arbitration waiver and
any challenge to the class arlbiitratiion waiver may only be raiised in a court of
competent Jurisdiction,
10,6.10 Except as may be required by lavew,neither a party nor the arbitrator may
disclose the exlistenc.e,content or results of any arlbitratiion vviithout the Ipriior vvriitten
consent of both parties, unless to protect or pursue a legal right.
10.6..11 Of any Iproviisiion of thiis Sectiion 10.6 its found unenforceable,the unenforceable
proviisiion will be severed and the remaining arbitration terms will be enforced.
10.7 Miscellaneous.This Agreement,'unc.ludling an Orders and Exhibits,our Prlivac.y
Policy,and Terms of Sale('if applicable),constitute the sole and entire agreement
between you and 120 Water Audit,Onc.,with respect to the Welbs'ute,the Services,and
Purchased goods,and supersede all Ipriior and contemporaneous understand'ungs,
agreements,representations and vvarrantiies,both vvriitten and oral,with respect to the
Welbslite,the Services,or(purchased goods..Any lincons'ustenc.y or ambiguity among
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such agreements shall be resolved by giving precedence in the following order:(1)this
Agreement.;(2)the Terms of Sale;and(3)our Privacy Policy.To the extent.of any
conflict.or inconsistency between the provisions in the body of this Agreement.and any
Order or Exhibit,the terms in the body of this Agreement.shall prevail unless expressly
stated otherwise in such Order or Exhibit..When used herein,the words"includes"or
"including"means"including but not.limited to". Except.as set.forth in Section 10.4„no
modification,amendment,or waiver of any provision of this Agreement.shall be
effective unless in writing and signed by both parties.Any provision of this Agreement.
which is prohibited and unenforceable in any jurisdiction shall be replaced with a valid
provision that is closer to the scope and intent of the invalid provision and shall not
affect the validity of the remaining provisions hereof.
Water Programs Sectors Key Issues Fcei Contact
Joan and Comer SaQverr lent Water Safety Webinarl infop120wateraudit.com
•
totr;35trusitlre •ir ritaies
LSL Inventory& Pyl2liz Water Quality& e@QQks,LGuides Sales:1-888-
�� Lystems ComDlianu
Blog 317-1510
SamDlinain Engineering A1,-Home Water
£rati•• Our Lentersg Support:1-800-
S.Qnm eLa Testing Esc. oc.e
Consumer.Reauest, 674 7961
Pitcher/Filer Water Platform
Company 250 South Elm St.
Fmero'inoi Digital Sampling,Ki Al2Qu1120Wa1eet Zionsville,IN 46077
L.gatamiDania siQLiLlzased
Partners
Trustesaalt software
Services Leadership
Careers
Copyright 0 2020 120Water,Inc..V All Rights Reserved i?sivacx,poticv V .C.errilS.Qf.I 9 0 .T..9 rfr]S.Qd.:>aia
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EXHIBIT B
Invoice
Date:
Name of Company:
Address &Zip:
Telephone No.:
Fax No.:
Project Name:
Invoice No.
Purchase Order No:
Goods Services
Person Providing Date Goods/Services Provided Cost Per Hourly Total
Goods/Services Goods/ (Describe each good/service Item Rate/
Service separately and in detail) Hours
Provided Worked
GRAND TOTAL
Signature
Printed Name
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EXHIBIT C
INSURANCE COVERAGES
Worker's Compensation & Disability Statutory Limits
Employer's Liability:
Bodily Injury by Accident/Disease: $100,000 each employee
Bodily Injury by Accident/Disease: $250,000 each accident
Bodily Injury by Accident/Disease: $500,000 policy limit
Property damage, contractual liability,
products-completed operations:
General Aggregate Limit(other than
Products/Completed Operations): $500,000
Products/Completed Operations: $500,000
Personal & Advertising Injury
Policy Limit: $500,000
Each Occurrence Limit: $250,000
Fire Damage (any one fire): $250,000
Medical Expense Limit(any one person): $ 50,000
Comprehensive Auto Liability(owned, hired and non-owned)
Bodily Single Limit: $500,000 each accident
Injury and property damage: $500,000 each accident
Policy Limit: $500,000
Umbrella Excess Liability
Each occurrence and aggregate: $500,000
Maximum deductible: $ 10,000
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EXHIBIT D
AFFIDAVIT
David Sears ,being first duly sworn, deposes and says that
he/she is familiar with and has personal knowledge of the facts herein and, if called as a witness in this
matter, could testify as follows:
1. I am over eighteen (18) years of age and am competent to testify to the facts contained
herein.
2. I am now and at all times relevant herein have been employed by
120 Water Audit, Inc. (the "Employer")
in the position of Vice Presdent Finance &Operations .
3. I am familiar with the employment policies,practices, and procedures of the Employer and
have the authority to act on behalf of the Employer.
4. The Employer is enrolled and participates in the federal E-Verify program and has
provided documentation of such enrollment and participation to the City of Carmel,
Indiana.
5. The Company does not knowingly employ any unauthorized aliens.
FURTHER AFFIANT SAYETH NOT.
EXECUTED on the 15th day of December , 20 20
Printed: David Sears
I certify under the penalties for perjury under the laws of the United States of America and the State of
Indiana that the foregoing factual statements and representations are true and correct.
Printed: Antony Rhine
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City of Carmel INDIANA RETAIL TAX EXEMPT PAGE 1
CERTIFICATE NO. 003120155 002 0 PURCHASE ORDER NUMBER
ONE CIVIC SQUARE S03115
CARMEL, INDIANA 46032 FEDERAL EXCISE TAX EXEMPT
THIS NUMBER MUST APPEAR ON INVOICES,A/P
35-6000972 VOUCHER,DELIVERY MEMO,PACKING SLIPS,
SHIPPING LABELS AND ANY CORRESPONDENCE.
FORM APPROVED BY STATE BOARD OF ACCOUNTS FOR CITY OF CARMEL-1997
PURCHASE ORDER DATE DATE REQUIRED REQUISITION NO. VENDOR NO. DESCRIPTION
12/11/2020 375351
120WATER Carmel Utilities
VENDOR PO Box 604 SHIP 30 West Main St Ste 220
Zionsville IN 46077 TO Carmel, IN 46032
CONFIRMATION BLANKET CONTRACT PAYMENT TERMS FREIGHT
QUANTITY UNIT OF MEASURE DESCRIPTION UNIT PRICE EXTENSION
1. 00 Each quote 1/4/2021 - COVID 22,368 .00 22,368 .00
wastewater monitoring kit 01-1420-00
PLEASE INVOICE IN DUPLICATE Credit 0 .00
Department Account Project Project Account AMOUNT
PAYMENT 22,368 . 00
SHIPPING INSTRUCTIONS *A/P VOUCHER CANNOT BE APPROVED FOR PAYMENT UNLESS THE P.O.
'SHIP PREPAID NUMBER IS MADE A PART OF THE VOUCHER AND EVERY INVOICE AND
•C.O.D.SHIPMENTS CANNOT BE ACCEPTED VOUCHER HAS THE PROPER SWORN AFFADAVIT ATTACHED.
PURCHASE ORDER NUMBER MUST APPEAR ON ALL *I HEREBY CERTIFY THAT THERE IS AN OBLIGATED BALANCE IN
SHIPPING LABELS THIS APPROPRIATION SUFFICIENT TO PAY F R THE ABOVE ORDER.
'THIS ORDER ISSUED IN COMPLIANCE WITH CHAPTER 99,ACTS 1945
AND ACTS AMENDATORY THEREOF AND SUPPLEMENT THERETO. ORDERED BY
TITLE
DOCUMENT CONTROL NO. S03115 CLERK-TREASURER