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General Terms and Conditions

DEFINITIONS Unless otherwise required by the context, "Service Provider”, and its successors,
transferees and assignees (together “Service Provider’) includes any of the Service Provider's
consultants, sub consultants, contractors, and subcontractors

SERVICE PROVIDER STATUS The parties agree that Service Provider shall have the status of and
shall perform all work under this contract as a Service Provider, maintaining control over all its
consultants, sub consultants, contractors, or subcontractors. The only contractual relationship
created by this contract is between the City of Nashua and Service Provider, and nothing in this
contract shall create any contractual relationship between the City of Nashua and Service
Provider's consultants, sub consultants, contractors, or subcontractors. The parties also agree that
Service Provider is not a City of Nashua employee and that there shall be no:

(1) Withholding of income taxes by the City of Nashua:

(2) Industrial insurance coverage provided by the City of Nashua;

(3) Participation in group insurance plans which may be available to employees of
the City of Nashua;

(4) Participation or contributions by either the Service Provider or the City of
Nashua to the public employee’s retirement system;

(5) Accumulation of vacation leave or sick leave provided by the City of Nashua;

(6) Unemployment compensation coverage provided by the City of Nashua.

STANDARD OF CARE Service Provider shall be responsible for the professional quality,
technical accuracy, timely completion, and coordination of all work performed under this
contract. Service Provider warrants that all work shall be performed with the degree of
professional skill, care, diligence, and sound practices and judgment that are normally exercised
by recognized professional firms with respect to services of a similar nature. It shall be the duty
of Service Provider to assure at its own expense that all work is technically sound and in
conformance with all applicable federal, state, and local laws, statutes, regulations, ordinances,
orders, or other requirements. In addition to all other rights which the City of Nashua may have,
Service Provider shall, at its own expense and without additional compensation, re-perform work
to correct or revise any deficiencies, omissions, or errors in the work or the product of the work or
which result from Service Provider's failure to perform in accordance with this standard of care.
Any approval by the City of Nashua of any products or services furnished or used by Service
Provider shall not in any way relieve Service Provider of the responsibility for professional and
technical accuracy and adequacy of its work. City of Nashua review, approval, or acceptance of,
or payment for any of Service Provider's work under this contract shall not operate as a waiver of
any of the City of Nashua's rights or causes of action under this contract, and Service Provider
shall be and remain liable in accordance with the terms of the contract and applicable law.

Service Provider shall fumish competent and skilled personnel to perform the work under this
contract. The City of Nashua reserves the right to approve key personnel assigned by Service
Provider to perform work under this contract. Approved key personnel shall not be taken off of
the project by Service Provider without the prior written approval of the City of Nashua, except in
the event of termination of employment. Service Provider shall, if requested ta do so by the City
of Nashua, remove from the job any personnel whom the City of Nashua determines to be
incompetent, dishonest, or uncooperative.

CITY OF NASHUA REPRESENTATIVE The City of Nashua may designate a City of Nashua
representative for this contract. If designated, all notices, project materials, requests by Service

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City of Nashua

Purchasing Department
Administrative Services Division (603) 589-3330
229 Main Street - Nashua, NH 03060 Fax (603) 594-3233

June 28, 2022
Memo #23-296

TO: Mayor Donchess
Finance Committee

SUBJECT: Wastewater Chemicals: Polymer, Sodium Hypochlorite & Sodium Bisulfite in the amount
of $772,000 funded from account 61156 Chemicals

Please see attached communications from David Boucher, Superintendent of the Wastewater Department,
dated June 16, 2022 for project specific details related to this purchase. Below please find a summary of
the purchase approval request:

Item: Wastewater Chemicals: Polymer, Sodium Hypochlorite & Sodium Bisulfite

Value: Polymer in the amount of $340,000, Sodium Hypochlorite in the amount of
$355,000 and Sodium Bisulfite in the amount of $77,000 to total $772,000

Vendor: Polymer from Polydyne of Riceboro GA, Sodium Hypochlorite from Borden &
Remington of Fall River MA & Sodium Bisulfite from PVS Chemical Solutions

Department: 169 Wastewater
Source Fund: 61156 Chemicals

Ordinances: Pursuant to § 5-84 Special purchase procedures A/(3) Purchases which can be
procured through cooperative intergovernmental purchase agreements with
other governmental jurisdictions

The Board of Public Works (6/16/22 BPW meeting), Division of Public Works: Wastewater, and the
Purchasing Department respectfully request your approval of this contract.

Regards,
Kelly Parkinson

Purchasing Manager

Ce: D Boucher
C O'Connor

Provider, and any other communication about the contract shall be addressed or be delivered to
the City of Nashua Representative.

CHANGES TO SCOPE OF Work The City of Nashua may, at any time, by written order, make
changes to the general scope, character, or cost of this contract and in the services or work to be
performed, cither increasing or decreasing the scope, character, or cost of Service Provider's
performance under the contract. Service Provider shall provide to the City of Nashua within 10
calendar days, a written proposal for accomplishing the change. The proposal for a change shall
provide enough detail, including personnel hours for each sub-task and cost breakdowns of tasks,
for the City of Nashua to be able to adequately analyze the proposal. The City of Nashua will
then determine in writing if Service Provider should proceed with any or all of the proposed
change. If the change causes an increase or a decrease in Service Provider's cost or time required
for performance of the contract as a whole, an equitable adjustment shall be made and the
contract accordingly modified in writing. Any claim of Service Provider for adjustment under
this clause shall be asserted in writing within 30 days of the date the City of Nashua notified
Service Provider of the change.

When Service Provider seeks changes, Service Provider shall, before any work commences,
estimate their effect on the cost of the contract and on its schedule and notify the City of Nashua
in writing of the estimate. The proposal for a change shall provide enough detail, including
personnel hours for each sub-task and cost breakdowns of tasks, for the City of Nashua to be able
to adequately analyze the proposal. The City of Nashua will then determine in writing if Service
Provider should proceed with any or all of the proposed change.

Except as provided in this paragraph, Service Provider shall implement no change unless the City
of Nashua in writing approves the change. Unless otherwise agreed to in writing, the provisions
of this contract shall apply to all changes. The City of Nashua may provide verbal approval of a
change when the City of Nashua, in its sole discretion, determines that time is critical or public
health and safety are of concern. Any verbal approval shall be confirmed in writing as soon as
practicable. Any change undertaken without prior City of Nashua approval shall not be
compensated and is, at the City of Nashua's election, sufficient reason for contract termination.

CITY OF NASHUA COOPERATION The City of Nashua agrees that its personnel will cooperate
with Service Provider in the performance of its work under this contract and that such personnel
will be available to Service Provider for consultation at reasonable times and after being given
sufficient advance notice that will prevent conflict with their other responsibilities. The City of
Nashua also agrees to provide Service Provider with access to City of Nashua records in a
reasonable time and manner and to schedule items that require action by the Board of Public
Works and Finance Committee in a timely manner. The City of Nashua and Service Provider
also agree to attend all meetings called by the City of Nashua or Service Provider to discuss the
work under the Contract, and that Service Provider may elect to conduct and record such
meetings and shail later distribute prepared minutes of the meeting to the City of Nashua.

DISCOVERY OF CONFLICTS, ERRORS, OMISSIONS, AMBIGUITIES, OR DISCREPANCIES Service
Provider warrants that it has examined all contract documents, has brought all conflicts, errors,
discrepancies, and ambiguities to the attention of the City of Nashua in writing, and has
concluded that the City of Nashua's resolution of each matter is satisfactory to Service Provider.
All future questions Service Provider may have conceming interpretation or clarification of this
contract shall be submitted in writing to the City of Nashua within 10 calendar days of their
arising. The writing shall state clearly and in full detail the basis for Service Provider's question
or position. The City of Nashua representative shall render a decision within 15 calendar days.
The City of Nashua's decision on the matter is final. Any work affected by a conflict, error,
omission, or discrepancy which has been performed by Service Provider prior to having received
the City of Nashua's resolution shall be at Service Provider's risk and expense. At all times,
Service Provider shall carry on the work under this contract and maintain and complete work in

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accordance with the requirements of the contract or determination of the City of Nashua, Service
Provider is responsible for requesting clarification or interpretation and is solely liable for any
cost or expense arising from its failure to do so.

TERMINATION OF CONTRACT

A. TERMINATION, ABANDONMENT, OR SUSPENSION AT WILL. The City of Nashua, in its sole
discretion, shall have the right to terminate, abandon, or suspend all or part of the project and
contract at will. Ifthe City of Nashua chooses to terminate, abandon, or suspend all or part of the
project, it shall provide Service Provider 10 day’s written notice of its intent to do so.

If all or part of the project is suspended for more than 90 days, the suspension shall be treated as a
termination at will of all or part of the project and contract.

Upon receipt of notice of termination, abandonment, or suspension at will, Service Provider shall:

1. Immediately discontinue work on the date and to the extent specified in the notice.
Place no further orders or subcontracts for materials, services, or facilities, other than as
may be necessary or required for completion of such portion of work under the contract
that is not terminated.

3. Immediately make every reasonable effort to obtain cancellation upon terms
satisfactory to the City of Nashua of all orders or subcontracts to the extent they relate
to the performance of work terminated, abandoned, or suspended under the notice,
assign to the City of Nashua any orders or subcontracts specified in the notice, and
revoke agreements specified in the notice.

4. Not resume work after the effective date of a notice of suspension until receipt of a
written notice from the City of Nashua to resume performance.

In the event of a termination, abandonment, or suspension at will, Service Provider shal! receive
all amounts due and not previously paid to Service Provider for work satisfactorily completed in
accordance with the contract prior to the date of the notice and compensation for work thereafter
completed as specified in the notice. No amount shall be allowed or paid for anticipated profit on
unperformed services or other unperformed work.

B. TERMINATION FOR CAUSE This agreement may be terminated by the City of Nashua on 10
calendar day’s written notice to Service Provider in the event of a failure by Service Provider to
adhere to any or all the terms and conditions of the contract or for failure to satisfactorily, in the
sole opinion of the City of Nashua, to complete or make sufficient progress on the work in a
timely and professional manner. Service Provider shall be given an opportunity for consultation
with the City of Nashua prior to the effective date of the termination. Service Provider may
terminate the contract on 10 calendar days written notice if, through no fault of Service Provider,
the City of Nashua fails to pay Service Provider for 45 days after the date of approval by the City
of Nashua of any Application for Payment.

Upon receipt of notice of termination for cause, Service Provider shall:

1. Immediately discontinue work on the date and to the extent specified in the notice.

2. Provide the City of Nashua with a list of all unperformed services.

3. Place no further orders or sub-contracts for materials, services, or facilities, other than
as may be necessary or required for completion of such portion of work under the
contract that is not terminated.

4, Immediately make every reasonable effort to obtain cancellation upon terms
satisfactory to the City of Nashua of all orders or sub contracts to the extent they relate
to the performance of work terminated, abandoned, or suspended under the notice,

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assign to the City of Nashua any orders or sub contracts specified in the notice, and
revoke agreements specified in the notice.

5. Not resume work after the effective date of a notice of termination unless and until
receipt of a written notice from the City of Nashua to resume performance.

In the event of a termination for cause, Service Provider shall receive all amounts due and not
previously paid to Service Provider for work satisfactorily completed in accordance with the
contract prior to the date of the notice, less all previous payments. No amount shall be allowed or
paid for anticipated profit on unperformed services or other unperformed work. Any such
payment may be adjusted to the extent of any additional costs occasioned to the City of Nashua
by reasons of Service Provider's failure. Service Provider shall not be relieved of liability to the
City of Nashua for damages sustained from the failure, and the City of Nashua may withhold any
payment to the Service Provider until such time as the exact amount of damages due to the City
of Nashua is determined. All claims for payment by the Service Provider must be submitted to
the City of Nashua within 30 days of the effective date of the notice of termination.

If after termination for the failure of Service Provider to adhere to any of the terms and conditions
of the contract or for failure to satisfactorily, in the sole opinion of the City of Nashua, to
complete or make sufficient progress on the work in a timely and professional manner, it is
determined that Service Provider had not so failed, the termination shall be deemed to have been
a termination at will. In that event, the City of Nashua shall, if necessary, make an adjustment in
the compensation paid to Service Provider such that Service Provider receives total compensation
in the same arnount as it would have received in the event of a termination-at-will.

C. GENERAL PROVISIONS FOR TERMINATION Upon termination of the contract, the City of
Nashua may take over the work and prosecute it to completion by agreement with another party
or otherwise, In the event Service Provider shall cease conducting business, the City of Nashua
shall have the right to solicit applications for employment from any employee of the Service
Provider assigned to the performance of the contract.

Neither party shall be considered in default of the performance of its obligations hereunder to the
extent that performance of such obligations is prevented or delayed by any cause, existing or
future, which is beyond the reasonable control of such party. Delays arising from the actions or
inactions of one or more of Service Provider's principals, officers, employees, agents,
subcontractors, consultants, vendors, or suppliers are expressly recognized to be within Service
Provider's control.

DISPUTE RESOLUTION The parties shall attempt to resolve any dispute related to this contract
as follows. Either party shall provide to the other party, in writing and with full documentation to
verify and substantiate its decision, its stated position concerning the dispute. No dispute shall be
considered submitted and no dispute shall be valid under this provision unless and until the
submitting party has delivered the written statement of its position and full documentation to the
other party. The parties shall then attempt to resolve the dispute through good faith efforts and
negotiation between the City of Nashua Representative and a Service Provider Representative.
At all times, Service Provider shall carry on the work under this contract and maintain and
complete work in accordance with the requirements of the contract or determination or direction
of the City of Nashua. If the parties are unable to resolve their dispute as described above within
30 days, the parties may request that the dispute be submitted to the Board of Public Works for
resolution. If the parties are dissatisfied with the decision of the Board of Public Works, the
parties’ reserve the right to pursue any available legal and/or equitable remedies for any breaches
of this contract except as that right may be limited by the terms of this contract.

NO DAMAGES FOR DELAY Apart from a written extension of time, no payment, compensation,

or adjustment of any kind shall be made to Service Provider for damages because of hindrances
or delays in the progress of the work from any cause, and Service Provider agrees to accept in full

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satisfaction of such hindrances and delays any extension of time that the City of Nashua may
provide.

INSURANCE Service Provider shall carry and maintain in effect during the performance of
services under this contract:

> General Liability insurance in the amount of $1,000,000 per occurrence; $2,000,000
ageregate;
> $1,000,000 Combined Single Limit Automobile Liability;
* Coverage must include all owned, non-owned and hired vehicles.
> $1,000,000 Profession Liability;
> and Workers' Compensation Coverage in compliance with the State of New
Hampshire statutes, $100,000/$500,000/$100,000.

Service Provider shall maintain in effect at all times during the performance under this contract
all specified insurance coverage with insurers. None of the requirements as to types and limits to
be maintained by Service Provider are intended to and shall not in any manner limit or qualify the
liabilities and obligations assumed by Service Provider under this contract. The City of Nashua
shall not maintain any insurance on behalf of Service Provider. Subcontractors are subject to the
same insurance requirements as Service Provider and it shall be the Service Provider's
responsibility to ensure compliance of this requirement.

Service Provider will provide the City of Nashua with certificates of insurance for coverage as
listed below and endorsements affecting coverage required by the contract within ten calendar
days after the City of Nashua issues the notice of award. The City of Nashua requires thirty days
written notice of cancellation or material change in coverage. The certificates and endorsements
for each insurance policy must be signed by a person authorized by the insurer and who is
licensed by the State of New Hampshire. General Liability and Auto Liability policies must
name the City of Nashua as an additional insured and reflect on the certificate of
insurance. Service Provider is responsible for filing updated certificates of insurance with the
City of Nashua's Risk Management Department during the life of the contract.

> All deductibles and self-insured retentions shall be fully disclosed in the certificate(s) of
insurance.
> If aggregate limits of less than $2,000,000 are imposed on bodily injury and
property damage, Service Provider must maintain umbrella liability insurance of at
least $1,000,000. All aggregates must be fully disclosed on the required certificate of
insurance.
> The specified insurance requirements do not relieve Service Provider of its
responsibilities or limit the amount of its liability to the City of Nashua or other
persons, and Service Provider is encouraged to purchase such additional insurance, as it
deems necessary,

> The insurance provided herein is primary, and no insurance held or owned by the City
of Nashua shall be called upon to contribute to a loss.
>» Service Provider is responsible for and required to remedy all damage or loss to any
property, including property of the City of Nashua, caused in whole or part by Service
Provider or anyone employed, directed, or supervised by Professional Engineer.

INDEMNIFICATION Regardless of any coverage provided by any insurance, Service Provider
agrees to indemnify and hold harmless the City of Nashua, its agents, officials, employees and
authorized representatives and their employees from and against any and all suits, causes of
action, legal or administrative proceedings, arbitrations, claims, demands, damages, liabilities,
interest, attorney’s fees, costs and expenses of any kind or nature in any manner caused,

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occasioned, or contributed to in whole or in part by reason of any negligent act, omission, or fault
or willful misconduct, whether active or passive, of Service Provider or of anyone acting under its
direction or control or on its behalf in connection with or incidental to the performance of this
contract. Service Provider’s indemnity and hold harmless obligations, or portions thereof, shall
not apply to liability caused by the sole negligence or willful misconduct of the party indemnified
or held harmless.

FISCAL CONTINGENCY All payments under this contract are contingent upon the availability to
the City of Nashua of the necessary funds. This contract shall terminate and the City of Nashua's
obligations under it shall be extinguished at the end of any fiscal year in which the City of Nashua
fails to appropriate monies for the ensuing fiscal year sufficient for the performance of this
contract.

Nothing in this contract shall be construed to provide Service Provider with a right of payment
over any other entity. Any funds obligated by the City of Nashua under this contract that are not
paid to Service Provider shall automatically revert to the City of Nashua’s discretionary control
upon the completion, termination, or cancellation of the agreement. The City of Nashua shall not
have any obligation to re-award or to provide, in any manner, the unexpended funds to Service
Provider. Service Provider shall have no claim of any sort to the unexpended funds.

COMPENSATION Review by the City of Nashua of Service Provider's submitted monthly invoice
forms and progress reports for payment will be promptly accomplished by the City of Nashua. If
there is insufficient information, the City of Nashua may require Service Provider to submit
additional information. Unless the City of Nashua, in its sole discretion, decides otherwise, the
City of Nashua shail pay Service Provider in full within 30 days of approval of the submitted
monthly invoice forms and progress reports.

COMPLIANCE WITH APPLICABLE LAWS Service Provider, at all times, shall fully and
completely comply with all applicable local, state and federal laws, statutes, regulations,
ordinances, orders, or requirements of any sort in carrying out the obligations of this contract,
including, but not limited to, all federal, state, and local accounting procedures and requirements,
all immigration and naturalization laws, and the Americans With Disabilities Act. Service
Provider shall, throughout the period services are to be performed under this contract, monitor for
any changes to the applicable laws, statutes, regulations, ordinances, orders, or requirements,
shall promptly notify the City of Nashua in writing of any changes to the same relating to or
affecting this contract, and shall submit detailed documentation of any effect of the change in
terms of both time and cost of performing the contract.

NONDISCRIMINATION If applicable or required under any federal or state law, statute, regulation,
order, or other requirement, Service Provider agrees to the following terms. Service Provider will
not discriminate against any employee or applicant for employment because of physical or mental
handicap in regard to any position for which the employee or applicant for employment is
qualified. Service Provider agrees to take affirmative action to employ, advance in employment,
or to otherwise treat qualified, handicapped individuals without discrimmation based upon
physical or mental handicap in all employment practices, including but not limited to the
following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff,
termination, rates of pay, or other forms of compensation and selection for training, including
apprenticeship.

Without limitation of the foregoing, Service Provider's attention is directed to “Title 41”Public
Contracts and Property Management” C.F.R. Subtitle B “Other Provisions Relating to Public
Contracts” Section 60 “Office of Federal Contract Compliance Programs, Equal Employment,
Department of Labor” which, by this reference, is incorporated in this contract.

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Service Provider agrees to assist disadvantaged business enterprises in obtaining business
opportunities by identifying and encouraging disadvantaged suppliers, consultants, and sub
consultants to participate to the extent possible, consistent with their qualification, quality of
work, and obligation of Service Provider under this contract.

In connection with the performance of work under this contract, Service Provider agrees not to
discriminate against any employee or applicant for employment because of race, creed, color,
national origin, sex, age, or sexual orientation. This agreement includes, but is not limited to, the
following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising,
layoff or termination, rates of pay or other forms of compensation, and selection for training,
including apprenticeship.

Service Provider agrees, if applicable, to insert these provisions in all subcontracts, except for
subcontracts for standard commercial supplies or raw materials. Any violation of any applicable
provision by Service Provider shall constitute a material breach of the contract.

ENDORSEMENT Service Provider shall seal and/or stamp and sign professional documents
including drawings, plans, maps, reports, specifications, and other instruments of service prepared
by Service Provider or under its direction as required under the laws of the State of New
Hampshire.

ASSIGNMENT, TRANSFER, DELEGATION, OR SUBCONTRACTING Service Provider shall not
assign, transfer, delegate, or subcontract any rights, obligations, or duties under this contract
without the prior written consent of the City of Nashua. Any such assignment, transfer,
delegation, or subcontracting without the prior written consent of the City of Nashua is void, Any
consent of the City of Nashua to any assignment, transfer, delegation, or subcontracting shall only
apply to the incidents expressed and provided for in the written consent and shall not be deemed
to be a consent to any subsequent assignment, transfer, delegation, or subcontracting. Any such
assignment, transfer, delegation, or subcontract shall require compliance with or shall incorporate
all terms and conditions set forth in this agreement, including all incorporated Exhibits and
written amendments or modifications. Subject to the foregoing provisions, the contract inures to
the benefit of, and is binding upon, the successors and assigns of the parties.

CITY INSPECTION OF CONTRACT MATERIALS The books, records, documents and accounting
procedures and practices of Service Provider related to this contract shall be subject to inspection,
examination and audit by the City of Nashua, including, but not limited to, the contracting
agency, the Board of Public Works, Corporation Counsel, and, if applicable, the Comptroller
General of the United States, or any authorized representative of those entities.

DISPOSITION OF CONTRACT MATERIALS Any books, reports, studies, photographs, negatives or
other documents, data, drawings or other materials, including but not limited to those contained in
media of any sort (e.g., electronic, magnetic, digital) prepared by or supplied to Service Provider
in the performance of its obligations under this contract shall be the exclusive property of the City
of Nashua and all such materials shall be remitted and delivered, at Service Provider's expense,
by Service Provider to the City of Nashua upon completion, termination, or cancellation of this
contract. Alternatively, if the City of Nashua provides its written approval to Service Provider,
any books, reports, studies, photographs, negatives or other documents, data, drawings or other
materials including but not limited to those contained in media of any sort (e.g., electronic,
magnetic, digital) prepared by or supplied to Service Provider in the performance of ifs
obligations under this contract must be retained by Service Provider for a mimimum of four years
after final payment is made and all other pending matters are closed. If, at any time during the
retention period, the City of Nashua, in writing, requests any or all of the materials, then Service
Provider shall promptly remit and deliver the materials, at Service Provider's expense, to the City
of Nashua. Service Provider shall not use, willingly allow or cause to have such materials used

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for any purpose other than the performance of Service Provider's obligations under this contract
without the prior written consent of the City of Nashua.

PUBLIC RECORDS LAW, COPYRIGHTS, AND PATENTS Service Provider expressly agrees that all
documents ever submitted, filed, or deposited with the City of Nashua by Service Provider
(including those remitted to the City of Nashua by Service Provider pursuant to paragraph 20),
unless designated as confidential by a specific statue of the State of New Hampshire, shall be
treated as public records and shall be available for inspection and copying by any person, or any
governmental entity.

No books, reports, studies, photographs, negatives or other documents, data, drawings or other
materials including but not limited to those contained in media of any sort (e.g., electronic,
magnetic, digital} prepared by or supplied to Service Provider in the performance of its
obligations under this contract shall be the subject of any application for a copyright or patent by
or on behalf of Service Provider. The City of Nashua shall have the right to reproduce any such
materials.

Service Provider expressly and indefinitely waives all of its rights to bring, including but not
limited to, by way of complaint, interpleader, intervention, or any third party practice, any claims,
demands, suits, actions, judgments, or executions, for damages or any other relief, in any
administrative or judicial forum, against the City of Nashua or any of its officers or employees, in
either their official or individual capacity of the City of Nashua, for violations of or infringement
of the copyright or patent laws of the United States or of any other nation. Service Provider
agrees to indemnify, to defend, and to hold harmless the City of Nashua, its representatives, and
employees from any claim or action seeking to impose liability, costs, and attorney fees incurred
as a result of or in connection with any claim, whether nghtful or otherwise, that any material
prepared by or supplied to Service Provider infringes any copyright or that any equipment,
material, or process (or any part thereof) specified by Service Provider infringes any patent.

Service Provider shali have the right, in order to avoid such claims or actions, to substitute at its
expense non-infringing materials, concepts, products, or processes, or to modify such infringing
materials, concepts, products, or processes so they become non-infringing, or to obtain the
necessary licenses to use the infringing materials, concepts, products, or processes, provided that
such substituted or modified materials, concepts, products, or processes shall meet all the
requirements and be subject to all the terms and conditions of this contract.

FINAL ACCEPTANCE Upon completion of all work under the contract, Service Provider shall
notify the City of Nashua in writing of the date of the completion of the work and request
confirmation of the completion from the City of Nashua, Upon receipt of the notice, the City of
Nashua shall confirm to Service Provider in writing that the whole of the work was completed on
the date indicated in the notice or provide Service Provider with a written list of work not
completed. With respect to work listed by the City of Nashua as incomplete, Service Provider
shall promptly complete the work and the final acceptance procedure shall be repeated. The date
of final acceptance of a project by the City of Nashua shall be the date upon which the Board of
Public Works or other designated official accepts and approves the notice of completion.

TAXES Service Provider shall pay all taxes, levies, duties, and assessments of every nature due
in connection with any work performed under the contract and make any and ail payroll
deductions required by law. The contract sum and agreed variations to it shall include all taxes
imposed by law. Service Provider hereby indemnifies and holds harmless the City of Nashua
from any liability on account of any and all such taxes, levies, duties, assessments, and
deductions.

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NON-WAIVER OF TERMS AND CONDITIONS None of the terms and conditions of this contract
shall be considered waived by the City of Nashua. There shall be no waiver of any past or future
default, breach, or modification of any of the terms and conditions of the contract unless
expressly stipulated to by the City of Nashua in a written waiver.

RIGHTS AND REMEDIES The duties and obligations imposed by the contract and the rights and
remedies available under the contract shall be in addition to and not a limitation of any duties,
obligations, rights, and remedies otherwise imposed or available by law.

PROHIBITED INTERESTS Service Provider shall not allow any officer or employee of the City of
Nashua to have any indirect or direct interest in this contract or the proceeds of this contract.
Service Provider warrants that no officer or employee of the City of Nashua has any direct or
indirect interest, whether contractual, noncontractual, financial or otherwise, in this contract or in
the business of Service Provider, If any such interest comes to the attention of Service Provider
at any time, a full and complete disclosure of the interest shall be immediately made in writing to
the City of Nashua. Service Provider also warrants that it presently has no interest and that it will
not acquire any interest, direct or indirect, which would conflict in any manner or degree with the
performance of services required to be performed under this contract. Service Provider further
warrants that no person having such an interest shall be employed in the performance of this
contract. If City of Nashua determines that a conflict exists and was not disclosed to the City of
Nashua, it may terminate the contract at will or for cause in accordance with paragraph 8.

In the event Service Provider (or any of its officers, partners, principals, or employees acting with
its authority) is convicted of a crime involving a public official arising out or in connection with
the procurement of work to be done or payments to be made under this contract, City of Nashua
may terminate the contract at will or for cause in accordance with paragraph 8. Upon termination,
Service Provider shall refund to the City of Nashua any profits realized under this contract, and
Service Provider shall be liable to the City of Nashua for any costs incurred by the City of Nashua
in completing the work described in this contract. At the discretion of the City of Nashua, these
sanctions shall also be applicable to any such conviction obtained after the expiration or
completion of the contract.

Service Provider warrants that no gratuities (including, but not limited to, entertainment or gifts)
were offered or given by Service Provider to any officer or employee of the City of Nashua with a
view toward securing a contract or securing favorable treatment with respect to the awarding or
amending or making of any determinations with respect to the performance of this contract. If
City of Nashua determines that such gratuities were or offered or given, it may terminate the
contract at will or for cause in accordance with paragraph 8.

The rights and remedies of this section shall in no way be considered for be construed as a waiver
of any other rights or remedies available to the City of Nashua under this contract or at law.

THIRD PARTY INTERESTS AND LIABILITIES The City of Nashua and Service Provider,
including any of their respective agents or employees, shall not be liable to third parties for any
act or omission of the other party. This contract is not intended to create any nghts, powers, or
interest in any third party and this agreement is entered into for the exclusive benefit of the City
of Nashua and Service Provider.

SURVIVAL OF RIGHTS AND OBLIGATIONS The rights and obligations of the parties that by their
nature survive termination or completion of this contract shall remain in full force and effect.

SEVERABILITY In the event that any provision of this contract is rendered invalid or

unenforceable by any valid act of Congress or of the New Hampshire legislature or any court of
competent jurisdiction, or is found to be in violation of state statutes or regulations, the invalidity

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