HomeMy WebLinkAboutOrdinance 6580113 West Mountain Street
Fayetteville, AR 72701
(479)575-8323
Ordinance: 6580
File Number: 2022-0541
OVIVO USA, LLC:
AN ORDINANCE TO WAIVE COMPETITIVE BIDDING AND ACCEPT A QUOTE IN THE
AMOUNT OF $55,334.00 PLUS APPLICABLE TAXES AND FREIGHT CHARGES FROM
OVIVO USA, LLC FOR THE PURCHASE OF TWO MACERATOR PUMPS FOR THE
NOLAND WATER RESOURCE RECOVERY FACILITY
WHEREAS, the macerator pumps used at the Noland Water Resource Recovery Facility have been
rebuilt multiple times and are nearing the end of their useful lifespans;
WHEREAS, Ovivo USA, Inc. is the sole source provider of the screen -handling system in use at the
Noland facility, including the macerator pumps, and the pumps are not commercially available through
other vendors.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of the City of Fayetteville, Arkansas hereby finds the above
circumstances make competitive bidding not feasible or practical and therefore waives the
requirements of formal competitive bidding and accepts a quote in the amount of $55,334.00 (plus any
applicable taxes and shipping charges) from Ovivo USA, LLC for the purchase of two macerator
pumps used at the Noland Water Resource Recovery Facility.
PASSED and APPROVED on 7/5/2022
Page 1 Printed on 716122
Ordinance: 6580
File Number: 2022-0541
Attest:
Kara Paxton, City Clerk Treasurer
Page 2 Printed on 7/6/22
City of Fayetteville, Arkansas 113 West Mountain Street
Fayetteville, AR 72701
(479)575-8323
Text File
File Number: 2022-0541
Agenda Date: 7/5/2022 Version: 1 Status: Passed
In Control: City Council Meetinq File Type: Ordinance
Agenda Number: D.2
OVIVO USA, LLC:
AN ORDINANCE TO WAIVE COMPETITIVE BIDDING AND ACCEPT A QUOTE IN THE
AMOUNT OF $55,334.00 PLUS APPLICABLE TAXES AND FREIGHT CHARGES FROM OVIVO
USA, LLC FOR THE PURCHASE OF TWO MACERATOR PUMPS FOR THE NOLAND WATER
RESOURCE RECOVERY FACILITY
WHEREAS, the macerator pumps used at the Noland Water Resource Recovery Facility have been rebuilt
multiple times and are nearing the end of their useful lifespans;
WHEREAS, Ovivo USA, Inc. is the sole source provider of the screen -handling system in use at the Noland
facility, including the macerator pumps, and the pumps are not commercially available through other vendors.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of the City of Fayetteville, Arkansas hereby finds the above circumstances
make competitive bidding not feasible or practical and therefore waives the requirements of formal competitive
bidding and accepts a quote in the amount of $55,334.00 (plus any applicable taxes and shipping charges) from
Ovivo USA, LLC for the purchase of two macerator pumps used at the Noland Water Resource Recovery
Facility.
City of Fayetteville, Arkansas Page 1 Printed on 71612022
Tim Nyander
Submitted By
City of Fayetteville Staff Review Form
2022-0541
Legistar File ID
7/5/2022
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
6/15/2022 WASTEWATER TREATMENT (730)
Submitted Date Division / Department
Action Recommendation:
Staff recommends approval of the purchase of two macerator pumps for the Noland Water Resource Recovery
Facility from Ovivo USA, LLC in the amount of $55,334.00 plus applicable taxes and freight charges.
Budget Impact:
54700.730.5800-5801.00
Water and Sewer
Account Number
Fund
02069.1
Plant Pumps and Equipment - WWTP
Project Number
Project Title
Budgeted Item? Yes
Current Budget
$ 1,459,141.00
Funds Obligated
$ 888,262.06
Current Balance
570,878.94
Does item have a cost? Yes
Item Cost
$ 60,729.07
Budget Adjustment Attached? No
Budget Adjustment
$ -
Remaining Budget
510,149.87
V20210527
Purchase Order Number:
Previous Ordinance or Resolution #
Change Order Number:
Approval Date:
Original Contract Number:
Comments: Freight is included in the quoted price, and taxes are estimated at $5,395.07 for a total cost of
$60,729.07.
CITY OF
FAYETTEVILLE
ARKANSAS
MEETING OF JULY 5, 2022
TO: Mayor and City Council
THRU: Susan Norton, Chief of Staff
Water & Sewer Committee
FROM: Tim Nyander, Utilities Director
DATE: June 15, 2022
CITY COUNCIL MEMO
SUBJECT: Ovivo USA, LLC — Macerator Pumps for Noland WRRF
RECOMMENDATION:
Staff recommends approval of the purchase of two macerator pumps for the Noland Water
Resource Recovery Facility from Ovivo USA, LLC in the amount of $55,334.00 plus applicable
taxes and freight charges.
BACKGROUND:
All incoming flow into the facility goes through a preliminary treatment process where the
majority of inorganic solids are removed from the process stream. Maci pumps are used in the
preliminary treatment process to break up (macerate) screened solids into fine particulates.
These particulates are then washed of organic particles before being dewatered and disposed
of in a sanitary dumpster.
DISCUSSION:
The Noland facility's two macerator pumps are worked extremely hard in a very harsh
environment. The existing pumps have been rebuilt multiple times and at an average cost of
$4,000 - $5,000 plus 5-15 hours of labor. As these pumps approach the end of their useful
lifespans, rebuilds and other maintenance are only becoming more frequent, making
replacement the most economical option.
Staff has received a quote from Ovivo USA in the amount of $55,334.00 plus applicable taxes
and freight charges. A bid waiver is requested because the Noland facility's screening -handling
system is sold only by Ovivo USA, LLC making all components commercially unavailable
through other vendors.
BUDGET/STAFF IMPACT:
Funds are available in the Plant Pumps and Equipment - WWTP account within the Water and
Sewer fund.
Attachments:
Quote from Ovivo USA
Mailing Address:
113 W. Mountain Street www.fayetteville-ar.gov
Fayetteville, AR 72701
Ovivo USA, LLC
4246 Riverboat Road, Suite 300
-40A Salt Lake City, UT 84123
W,,rdwbde Experts In We Sreetment
Phone: (801) 931-3000 Fax:(801)931-3080
Customer Quote
ATTENTION: Buddy Carter PHONE NO: 479-443-3292
SOLD TO CUSTOMER NUMBER 101615 SHIP TO
CH2MHill
1400 N Fox Hunter Rd
Fayetteville AR 72701
USA
Paul R. Noland WWTP
1400 N Fox Hunter Rd
Fayetteville AR 72701
USA
QUOTE # DATE I TERMS CUSTOMER RFQ SALESPERSON CURRENCY
::]
QSSW106023 5/24/2022 Net 30 days ETEC USD
L# I Items Quantity U/M I Lead Time I Unit Price I Total Value
Ovivo can also provide you with installation labor services
Please contact us for additional turn -key pricing.
1. Shipment: Approximately 9-11 WEEKS after receipt of purchase order and any required data. Lead times can
vary depending on time of order placement and current inventory levels.
2. Quantities: The prices are based on the quantities shown and are subject to increase if a lesser quantity is
required.
3. FCA: shipping point
4. Freight: ALLOWED, standard ground shipping only.
5. Packing: Made ready for standard transport.
6. Items quoted per customer provided part numbers.
7. This quote is valid for 30 Days. However, stainless steel parts pricing is valid for 10 days.
8. $100.00 Minimum Order
9. All sales are final.
DATE: 5/26/2022
Ovivo USA, LLC
4246 Riverboat Road, Suite 300
-40A Salt Lake City, UT 84123
W,,rdwbde Experts In We Sreetment
Phone: (801) 931-3000 Fax:(801)931-3080
Customer Quote
ATTENTION: Buddy Carter PHONE NO: 479-443-3292
SOLD TO CUSTOMER NUMBER 101615 SHIP TO
CH2MHill
1400 N Fox Hunter Rd
Fayetteville AR 72701
USA
Paul R. Noland WWTP
1400 N Fox Hunter Rd
Fayetteville AR 72701
USA
QUOTE # DATE TERMS CUSTOMER RFQ SALESPERSON CURRENCY
::]
QSSW106023 5/24/2022 Net 30 days ETEC USD
L# Items Quantity U/M Lead Time Unit Price Total Value
Ovivo can also provide you with installation labor services.
Please contact us for additional turn -key pricing.
1 PART # 560831 2 EA 9-11 Weeks 27,667.00 55,334.00
MACIPUMP,300 SERIES 350 S/E (160 FRAME)
Your point of contact is:
Ben Dansie
Aftermarket Parts and Rebuild Specialist
Inlet Works
Email: benjamin.dansie@ovivowater.com
Cel l:385-290-9841
Fax:801-931-3080
Sale Amount: 55,334.00
Total Amount: 55,334.00
USD
DATE: 5/26/2022
A) The Ovivo USA, LLC Terms and Conditions of Sale are attached and made essential parts of the Ovivo USA, LLC proposal or
purchase order confirmation. These terms and conditions replace and supersede any terms and conditions or warranty included in
Buyer's or Owner's purchase order, requests for quotation or specifications and cannot be changed without written approval from
an authorized representative of Ovivo USA, LLC.
B) GST and all other taxes are extra, if applicable.
C) Pricing valid for acceptance 30 days from date of the proposal document, and will be subject to change thereafter.
D) Shipping shall be (FCA) Free Carrier at point of manufacture unless otherwise stated above. Insurance is the responsibility of
Buyer.
E) Payment terms are stated above.
F) Duty, freight and brokerage costs are for Buyer's account unless stated otherwise herein.
G) Minimum billing of $100 per order.
H) Notwithstanding any liabilities or responsibilities it has assumed hereunder, Ovivo USA, LLC shall in no event be responsible to
Buyer or any third parry in contract or in tort, or otherwise, for loss or damage sustained as a result of the operation of the
equipment, loss of use, expenses involved in loss of capital claims or Buyer's or Owner's loss of profit or revenues, or any other
indirect, incidental, special or consequential loss or damage, whether arising from defects, delay, or any other cause whatsoever.
I) Current Ovivo USA, LLC paint specifications shall apply unless otherwise specified.
J) Any and all stock or "off the shelf' parts returned to Ovivo USA, LLC are subject to a re -stocking fee equal to 25% of their
respective invoice price. All other parts, including but not limited to customized and special manufactured parts, shall, at the sole
discretion of Ovivo USA, LLC be (i) subject to a restocking fee of 45% of their respective invoice price or (ii) non-refundable.
PLEASE ADDRESS AND SUBMIT YOUR PURCHASE ORDER TO THE ADDRESS INDICATED ABOVE.
DATE: 5/26/2022
-WaA
Warrdwld� Experts In Water Treatment
Terms & Conditions of Sale
1. ACCEPTANCE. The proposal of Ovivo USA. LLC ("SELLER"), as well as these terms and conditions of
sale (collectively the "Agreement"), constitutes SELLER'S contractual offer of goods and associated services,
and PURCHASER's acceptance of this offer is expressly limited to the terms of the Agreement. The scope
and terms and conditions of this Agreement represent the entire offer by SELLER and supersede all other
solicitations, discussions, agreements, understandings and representations between the parties. Any scope
or terms and conditions included in PURCHASERS acceptance/purchase order that are in addition to or
different from this Agreement are hereby rejected.
2. DELIVERY. Any statements relating to the date of shipment of the Products (as defined below) represent
SELLER's best estimate, but is not guaranteed, and SELLER shall not be liable for any damages due to late
delivery. The Products shall be delivered to the delivery point or points in accordance with the delivery terms
stated in SELLER's proposal. If such delivery is prevented or postponed by reason of Force Majeure (as
defined below), SELLER shall be entitled at its option to lender delivery to PURCHASER at the point or points
of manufacture, and in default of PURCHASERs acceptance of delivery to cause the Products to be stored at
such a point or points of manufacture at PURCHASER's expense. Such tender, if accepted, or such storage,
shall constitute delivery for all purposes of this agreement. If shipment is postponed at request of
PURCHASER, or due to delay in receipt of shipping instructions, payment of the purchase price shall be due
on notice from SELLER that the Products are ready for shipment. Handling, moving, storage, insurance and
other charges thereafter incurred by SELLER with respect to the Products shall be for the account of
PURCHASER and shall be paid by PURCHASER when invoiced. Delivery by SELLER of the Products shall
constitute acceptance of the Products by PURCHASER, unless written notice of defect or nonconformity is
received by SELLER within thirty (30) days of SELLER's delivery of the Products.
3. TITLE AND RISK OF LOSS. SELLER shall retain the fullest right, title, and interest in the Products to the
extent permitted by applicable law, including a security interest in the Products, until the full purchase price
has been paid to SELLER. The giving and accepting of drafts, notes andor trade acceptances to evidence
the payments due shall not constitute or be construed as payment so as to pass SELLERS interests until said
drafts, notes and/or trade acceptances are paid in full. Risk of loss shall pass to PURCHASER at the delivery
point.
4. PAYMENT TERMS. SELLER reserves the right to ship the Products and be paid for such on a pro rate basis,
as shipped. If payments are not made by the due date, interest at a rate of two percent (2%) per month,
calculated daily, shall apply from the due date for payment. PURCHASER is liable to pay SELLERS legal
fees and all other expenses in respect of enforcing or attempting to enforce any of SELLERS rights relating to
a breach or threatened breach of the payment terms by PURCHASER. In the event of nonpayment SELLER
reserves the further right to seek compensation from any third party in possession of the Products.
S.
TAXES. Unless otherwise specifically provided in SELLER's quotation/proposal; PURCHASER shall pay
and/or reimburse SELLER, in addition to the price, for all sales, use and other taxes, excises and charges
which SELLER may pay or be required to pay to any government directly or indirectly in connection with the
production, sale, transportation, andor use by SELLER or PURCHASER, of any of the Products or services
dealt with herein (whether the same may be regarded as personal or real property). PURCHASER agrees to pay
all property and other taxes which may be levied, assessed or charged against or upon any of the Products on
or after the date of actual shipment, or placing into storage for PURCHASER's account.
6. MECHANICAL WARRANTY. Solely for the benefit of PURCHASER, SELLER warrants that new equipment
and parts manufactured by it and provided to PURCHASER (collectively, "Products') shall be free from defects
in material and workmanship. The warranty period shall be twelve (12) months from startup of the equipment
not to exceed eighteen (18) months from the earliest of the notice of readiness to ship or the actual shipment
If any of SELLER's Products fail to comply with the foregoing warranty, SELLER shall repair or replace free of
charge to PURCHASER, EX WORKS SELLERS FACTORIES or other location that SELLER designates, any
Product or parts thereof returned to SELLER, which examination shall show to have failed under normal use
and service operation by PURCHASER within the Warranty Period; provided, that if it would be impracticable
for the Product or part thereof to be returned to SELLER, SELLER will send a representative to PURCHASERS
job site to inspect warranty Product. If it is determined after inspection that SELLER is liable under this waanty to
repair or replace the Product or part thereof, SELLER shall bear the transportation costs of (a) returning the
Product to SELLER for inspection or sending its representative to the job site and (b) returning the repaired or
replaced Products to PURCHASER; however, if it is determined after inspection that SELLER is not liable
under this warranty, PURCHASER shall pay those costs. For SELLER to be liable with respect to this warranty,
PURCHASER must make its claims to SELLER with respect to this warranty in writing no later than thirty (30)
days after the date PURCHASER discovers the basis for its warranty claim and in no event more than thirty (30)
days after the expiration of the Warranty Period. In addition to any other limitation or disclaimer with respect to
this warranty, SELLER shall have no liability with respect to any of the following: p) failure of the Products, or
damages to them, due to PURCHASER's negligence or willful misconduct, abuse or improper storage,
installation, application or maintenance (as specified in any manuals or written instructions that SELLER
provides to the PURCHASER); (ii) any Products that have been altered or repaired in any way without
SELLER's prior written authorization; (III) The costs of dismantling and reinstallation of the Products; (iv) any
Products damaged while in transit or otherwise by accident; (v) decomposition of Products by chemical action,
erosion or corrosion or wear to Products or due to conditions of temperature, moisture and dirt; or (vi) claims
with respect to parts that are consumable and normally replaced during maintenance such as filter media, filter
drainage belts and the like, except where such parts are not performing to SELLERS estimate of normal
service life, in which case, SELLER shall only be liable for the pro rate cost of replacement of those parts
based on SELLER's estimate of what the remaining service life of those parts should have been; provided, that
failure of those parts did not result from any of the matters listed in clauses (i) through (v) above. With regard to
third -party parts, equipment, accessories or components not of SELLERS design, SELLER's liability shall be
limited solely to the assignment of available third -party warranties. THE PARTIES AGREE THAT ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR
PURPOSE AND MERCHANTABILITY, WHETHER WRITTEN, ORAL OR STATUTORY, ARE EXCLUDED TO THE
FULLEST EXTENT PERMISSIBLE BY LAW. All warranties and obligations of SELLER shall terminate if
PURCHASER fails to perform its obligations under this Agreement including but not limited to any failure to
pay any charges due to SELLER. SELLER's quoted price for the Products is based upon this warranty. Any
increase in warranty obligation may be subject to an increase in price.
7. CONFIDENTIAL AND PROPRIETARY INFORMATION. All nonpublic or proprietary information and data
furnished to PURCHASER hereunder, including but not limited to price, size, type, design and other technical
or business information relating to the Products is the sole property of SELLER and submitted for
PURCHASER's own confidential use solely in connection with this Agreement and is not to be made known or
available to any third party without SELLER's prior written consent.
8. SURFACE COATING. Any Product coating provided by SELLER shall be in accordance with SELLERS
standard practice, unless otherwise agreed in writing.
9. DRAWINGS AND TECHNICAL DOCUMENTATION. When PURCHASER requests to approve drawings before
commencement of manufacture, shipment may be delayed if approved drawings are not returned to SELLER
within fourteen (14) days of receipt by PURCHASER of such drawings for approval. SELLER will furnish only
general arrangement, general assembly, and if required, wiring diagrams, erection drawings, installation and
operation -maintenance manuals for SELLER's equipment (in English language). SELLER will supply six (6)
complete sets of drawings and operating instructions. Additional sets will be paid for by PURCHASER
Electronic files, if requested from SELLER, will be provided in pdf, jpg or fifformal only.
10. SET OFF. This Agreement shall be completely independent of all other contracts between the parties and
all payments due to SELLER hereunder shall be paid when due and shall not be setoff or applied against any
money due or claimed to be due from SELLER to PURCHASER on account of any other transaction or claim.
11. SOFTWARE. PURCHASER shall have a nonexclusive and nontransferable license to use any information
processing program supplied by SELLER with the Products. PURCHASER acknowledges that such programs
and the information contained therein is Confidential Information and agrees: a) not to copy or duplicate the
program except for archival or security purposes; b) not to use the program on any computer other than the
computer with which it is supplied; and c) to limit access to the program to those of its employees who are
necessary to permit authorized use of the program. PURCHASER agrees to execute and be bound by the terms
of any software license applicable to the Products supplied.
12. PATENT INDEMNITY. SELLER will defend at its own expense any suit instituted against PURCHASER
based upon claims that SELLER's Product hereunder in and of itself constitutes an infringement of any valid
apparatus claims of any United States patent issued and existing as of the date of this Agreement, if notified
promptly in writing and given all information, assistance, and sole authority to defend and settle the same, and
SELLER shall indemnify the PURCHASER against such claims of infringement. Furthermore, in case the use
of the Products is enjoined in such suit or in case SELLER otherwise deems it advisable, SELLER shall, at
its own expense and discretion, (a) procure for the PURCHASER the right to continue using the Products, (b)
replace the same with non -infringing Products, (c) modify the Product so it becomes non -infringing, or (it)
remove the Products and refund the purchase price less freight charges and depreciation. SELLER shall not
be liable for, and PURCHASER shall indemnify SELLER for, any claim of infringement related to (a) the use of
the Products for any purpose other than that for which it was furnished by SELLER, (b) compliance with
equipment designs not furnished by SELLER or (c) use of the Products in combination with any other
equipment. The foregoing states the sole liability of SELLER for patent infringement with respect to the
Products
13. GENERAL INDEMNITY. Subject to the limitations of liabilities of the parties set forth in this Agreement,
each party shall protect and indemnify the other party, its parent and their respective officers, directors,
employees and agents, from and against all claims, demands and causes of action asserted by, or in favor of,
any entity to the extent of the indemnifying parrs negligence or willful misconduct in connection with the
performance of this agreement.
14. DEFAULT, TERMINATION. In the event that PURCHASER becomes insolvent, commits an act of bankruptcy
or defaults in the performance of any term or condition of this Agreement, the entire unpaid portion of the
purchase price shall, without notice or demand, become immediately due and payable. SELLER at its option,
without notice or demand, shall be entitled to sue for said balance and for reasonable legal fees, plus
out-of-pocket expenses and interest; andor to enter any place where the Products are located and to take
immediate possession of and remove the Products, with or without legal process; andor retain all payments
made as compensation for the use of the Products: and/or resell the Products, without notice or demand, for
and on behalf of the PURCHASER, and to apply the net proceeds from such sale (after deduction from the sale
price of all expenses of such sale and all expenses of retaking possession, repairs necessary to put the
Products in saleable condition, storage charges, taxes, liens, collection and legal fees and all other expenses
in connection therewith) to the balance then due to SELLER for the Products and to receive from the
PURCHASER the deficiency between such net proceeds of sale and such balance. PURCHASER hereby
waives all trespass, damage and claims resulting from any such entry, repossession, removal, retention,
repair, alteration and sale. The remedies provided in this paragraph are in addition to and not limitations of any
other rights of SELLER.
15. CANCELLATION. PURCHASER may terminate this Agreement for convenience upon giving SELLER thirty
(30) days prior written notice of such fact and paying SELLER for all costs and expenses (including overhead)
incurred by it in performing its work and closing out the same plus a reasonable profit thereon. All such costs
and expenses shall be paid to SELLER within ten (10) days of the termination of the Agreement, or be subject
to an additional late payment penalty of five percent (5%) of the total amount of costs and expenses owed.
16. REMEDIES. The rights and remedies of the PURCHASER in connection with the goods and services
provided by SELLER hereunder are exclusive and limited to the rights and remedies expressly stated in this
Agreement.
17. INSPECTION. PURCHASER is entitled to make reasonable inspection of Products at SELLERS facility.
SELLER reserves the right to determine the reasonableness of the request and to select an appropriate time
for such inspection. All costs of inspections not expressly included as an itemized part of the quoted price of
the Products in this Agreement shall be paid by PURCHASER.
18. WAIVER. Any failure by SELLER to enforce PURCHASER's strict performance of any provision of this
Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision
of this Agreement.
19. COMPLIANCE WITH LAWS. If applicable laws, ordinances, regulations or conditions require anything
different from, or in addition to that called for by this Agreement, SELLER will satisfy such requirements at
PURCHASER's written request and expense.
20. FORCE MAJEURE, If SELLER is rendered unable, wholly or in material part, directly or indirectly, by reason
of Force Majeure, to carry out any of its obligations hereunder, then on SELLERS notice in writing to
PURCHASER within a reasonable time after the occurrence of the cause relied upon, such obligations shall
be suspended. "Force Majeure" shall include, but not be limited to, acts of God, epidemics and pandemics,
acts of or delays caused by governmental authorities, changes in laws and regulations, strikes, civil
disobedience or unrest, lightning, fire, flood, washout, storm, communication lines failure, delays of the
PURCHASER or PURCHASER's subcontractors, breakage or accident to equipment or machinery, wars,
police actions, terrorism, embargos, and any other causes that are not reasonably within the control of the
SELLER. If the delay is the result of PURCHASER's action or inaction, then in addition to an adjustment in
time, SELLER shall be entitled to reimbursement of costs incurred to maintain its schedule. For the avoidance
of doubt, if the cause relied upon has commenced prior to the Parties entered into a contracting relationship, it
shall not render the cause void and/or not capable of being included within the definitions of Force Majeure, as
listed within this Article 20.
21. INDEPENDENT CONTRACTOR. It is expressly understood that SELLER is an independent contractor, and
that neither SELLER nor its principals, partners, parents, subsidiaries, affiliates, employees or subcontractors
are servants, agents, partners, joint ventures or employees of PURCHASER in any way whatsoever.
22. SEVERABILITY. Should any portion of this Agreement, be held to be invalid or unenforceable under
applicable law then the validity of the remaining portions thereof shall not be affected by such invalidity or
unenforceability and shall remain in full force and effect. Furthermore, any invalid or unenforceable provision
shall be modified accordingly within the confines of applicable law, giving maximum permissible effect to the
parties' intentions expressed herein.
23. CHOICE OF LAW. CHOICE OF VENUE. This Agreement shall be governed and construed in accordance
with the laws of the State of Utah, without regard to its rules regarding conflicts or choice of law. The parties
submit to the exclusive jurisdiction and venue of the state and federal courts located in Salt Lake City, Utah.
24. ASSIGNMENT. PURCHASER shall not assign or transfer this Agreement without the prior written consent
of SELLER. Any attempt to make such an assignment or transfer shall be null and void. SELLER shall have
the authority to assign, or otherwise transfer, its rights and obligations in connection with this Agreement, in
whole or in part, upon prior written notice to PURCHASER.
25. LIMITATION ON LIABILITY. To the extent permissible by law, SELLER shall HAVE NO FURTHER LIABILITY
IN CONNECTION WITH THIS AGREEMENT in excess of the amount paid by purchaser for the products giving
rise to such liability. Notwithstanding any liabilities or responsibilities assumed by SELLER hereunder,
SELLER shall in no event be responsible to PURCHASER or any third party, whether arising under contract,
tort (including negligence), strict liability, or otherwise, for loss of anticipated profits, loss by reason of plant
shutdown, non -operation or increased expense of operation, loss of data, service interruptions, cost of
purchased or replacement power, cost of money, loss of use of capital or revenue or any other indirect,
incidental, special, punitive, exemplary, or consequential loss or damage, whether arising from defects,
delay, or from any other cause whatsoeVER.
26. PRIVACY AND DATA PROTECTION. Seller has put in place rigorous safeguards and procedures regarding
privacy and data protection, notably the Ovivo Privacy Policy (ovivowater.com/privacy-policy), and requires that
Purchaser adhere to its data protection principles to the extent applicable to Purchaser.
27. DATA COLLECTION. PURCHASER consents to the collection of the Product's operational data and to the
use of such data for the purpose of improving the Products and other purposes stated herein. PURCHASER
further agrees that such data collection does not constitute a performance monitoring service or duty by
SELLER.
28. INSURANCE. SELLER shall maintain that its current levels of insurance for the duration of the Project, as
set forth in its standard certifcate of insurance, available upon request.
29. BONDS. If PURCHASER deems it necessary, and within ten (10) days of PURCHASER's request, SELLER
shall provide one or more Bonds in favor of PURCHASER, at PURCHASERS expense, by an institution, and in
a form, approved in advance by SELLER.
30. PERMITS. PURCHASER shall be solely responsible to obtain and maintain in force all necessary permits
with respect to any products to be provided by SELLER hereunder and any intended use by PURCHASER.
REVISED - March 2020
DATE: 5/26/2022