Loading...
HomeMy WebLinkAboutSpecial Purchase for Sole Source Purchase of TruNarc Drug Analyzer – Thermo Scientific Portable Analytical Instruments, Inc.n 1316 COUNTY -CITY BUILDING t � =• IN 227 W. JEFFERSON BOULEVARD} � I SOUTH BEND. INDIANA 46601-1 830 CITY OF SOUTH BEND JAMES MUELLER, MAYOR BOARD OF PUBLIC WORKS February 11, 2020 Mr. Michael Nagle Thermo Scientific Portable Analytical Instruments Inc. 2 Radcliff Rd. Tewksbury, MA 01876 RE: Special Purchase Dear Mr. Nagle: PHONE 574/235-9251 FAX 574/235-9171 The Board of Public Works, at its meeting held on February 11, 2020, approved the above referenced quote for the sole source purchase of TruNarc drug analyzer in the amount of $31,753. Enclosed please find a copy of the quote for your records. If you have any further questions regarding this matter, please call this office at (574) 235- 9251. Sincerely, Linda M. Martin, Clerk Enclosure GARY A. GILOT ELIZABETH A. MARADIK THERESE J. DORAU JORDAN V. GATHERS JOSEPH R. MOLNAR Sales Quotation Quote Number Created Date Ex . Delivery Terms Page 00201451 01/29/2020 ARO 1 /7 Contact: Phone Payment Term Valid To Michael Nagle Net 30 06/26/2020 Inco Terms Shipping Method FOB Origin - Tewksbury Fed Ex 2nd Day Submitted To: Tim Lancaster South Bend Police Department 701 W. Sample St. South Bend, Indiana 46601 United States Phone:5742359301 Email: tlancast@southbendin.gov THANK YOU FOR YOUR INTEREST IN THERMO SCIENTIFIC INSTRUMENTATION Thermo Scientific Portable Analytical Instruments Inc. 2 Radcliff Rd Tewksbury, Massachusetts 01876 United States To Place an Order: Contact: Michael Nagle Phone: (617) 716-9831 Fax: Email: michael.nagle@thermofisher.com Additional instructions, terns & conditions on last gaga Pos. Product Code Product Name Sales Price Quantity Total Price 1.00 800-01045-01 TruNarc, Unlimited, Warranty - 5 Yrs, Train-12 USD 31,200.00 1.00 USD 31,200.00 TruNarc Unlimited Model with 5 years of warranty. Includes factory repair, loaner units when available and 24/7 technical support. Companion PC TruNarc admin software, unlimited access to TruNarc eLeaming course and free basic software updates to core narcotics library are provided for the life of the instrument. Includes TruNarc on -site instructor led training for up to 12 students within the Continental United States (CONUS) - expires 9 months after date of purchase. 2.00 810-01462-01 TruNarc Solution Kit (Type H) - 100, English USD 553.00 1.00 USD 553.00 TruNarc Solution Kit (Type H) for identification of Heroin and other special narcotics. Kit includes 100 Test Sticks and 100 Solution Vials with Ethanol. Note that because of the Ethanol, this product ships as a Hazardous Goods shipment. The shelf life for Type H-sticks is approximately one year from shipment. Total: USD 31,753.00 i)llI1.tRitlptt.lRes : Fully Insured 2nd Day Federal Express delivery In U.S., Canada, and Puerto Rico When applicable, commodities, technology, or software to be provided in furtherance of this order shall be exported from the United States In accordance with applicable U.S, export laws or regulations, Diversion contrary to US law prohibited. Unless otherwise agreed to in writing, Thermo Scientific Portable Analytical Instruments Inc. terns and conditions shall apply and take precedence„ A,rtot: Thermo Fisher Pagel / 7 S C I E N T I F I C Important Note: Please issue POs to Thermo Scientific Portable Analytical Instruments Inc Federal Tax ID No.: 01-0650031 CAGE CODE: 392A9 DUNS #: 11-289-3131 Bank of America ABA# for Wire Payments: 026 009 593 Bank of America ABA# for ACH Payments: 111 000 012 Beneficiary Account Number: 4426843850 When applicable, commodities, technology, or software to be provided in furtherance of this order shall be exported from the United States in accordance with applicable U.S export laws or regulations. Diversion contrary to US law prohibited. Unless otherwise agreed to in writing, Thermo ScientificPortable Analytical Instruments Inc. terns and conditions shall apply and take precedence. A pert " af: I� hermo Fisher Page 2 / 7 S C I E N T I F I C Acceptance of Purchase Quote: MN-00201451 By signing below, you (1) warrant that you are an authorized representative of your company, (ii) agree that the Thermo Scientific Portable Analytical Instruments Inc. Terms and Conditions of Sale attached hereto (the "Terms and Conditions") shall supersede any preprinted terms and conditions, in their entirety, contained in any purchase order that your company issues and (iii) the Terns and Conditions shall exclusively govern the transaction(s) contemplated hereby a 111"v i Signature of authorized comr rreprie DAkfi www Print Name Model # E-mail to: 111I �µa4t �p,lau„e( Pi�eb tat Ye i�eaF:, wrnq t Fax to: 1-877 Order Processing Address: michael.nagle@thermofisher.com Thermo Scientific Portable Analytical Instruments Inc 2 Radcliff Road Tewksbury, MA 01876 Payment Details Method of Payment ❑ Net 30 (Attach Credit Application & Credit References) Phone# Email Purchase Order Number Remit check Payment To: Thermo Scientific Portable Analytical Instruments Inc PO Box 415918 Boston, MA 02241-415918 Sales Tax Application ❑ Yes Apply Sales Tax ❑ Credit Card ❑ No ❑ Check - If no, you must provide a copy of your tax exemption certificate along with your purchase order. ❑ Wire Transfer —Please contact your customer service representative with your credit card information. (Do not send any credit card info via email or fax.) - Address Verification Please make corrections if necessary below: Bill to: Ship to: 701 W Sample St 701 W Sample St South Bend, Indiana 46601-2890 South Bend, Indiana 46601-2890 United States United States Additional Options / Accessories Please use the space below to note any additional options and/or accessories you wish to add from the attached sheets that are not included in the above quotation. When applicable, commodities, technology, or software to be provided in furtherance of this order shall be exported from the United States in accordance with applicable U.S export laws or regulations. Diversion contrary to US law prohibited. Unless otherwise agreed to In writing, Thermo Scientific Portable Analytical Instruments Inc. terns and conditions shall apply and take precedence. Thermo Fisher Page 3 / 7 S C I E N T I F I C THERMO SCIENTIFIC PORTABLE ANALYTICAL INSTRUMENTS INC — TERMS AND CONDITIONS OF SALE Last revised November 2019 UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING, ALL SALES ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS: 1. GENERAL. Thermo Scientific Portable Analytical Instruments Inc ("Seller") hereby offers for sale to the buyer named on the face hereof ("Buyer") the products listed on the face hereof (the "Products") on the express condition that Buyer agrees to accept and be bound by the terms and conditions set forth herein. Any provisions contained in any document issued by Buyer are expressly rejected and if the terms and conditions in this agreement (the "Agreement") differ from the terms of Buyer's offer, this document shall be construed as a counter offer and shall not be effective as an acceptance of Buyer's document. Buyer's receipt of Products or Sellers commencement of the services provided hereunder will constitute Buyers acceptance of this Agreement. This is the complete and exclusive statement of the contract between Seller and Buyer with respect to Buyer's purchase of the Products. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by Seller and Buyer. Seller's failure to object to terms contained in any subsequent communication from Buyer will not be a waiver or modification of the terms set forth herein. All orders are subject to acceptance in writing by an authorized representative of Seller. 2. PRICE. All prices published by Seller or quoted by Sellers representatives may be changed at any time without notice. All prices quoted by Seller or Sellers representatives are valid for thirty (30) days, unless otherwise stated in writing. All prices for the Products will be as specified by Seller or, if no price has been specified or quoted, will be Seller's price in effect at the time of shipment. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions, which are not part of Seller's original price quotation. 3. TES AND OTHER CHARGES. Prices for the Products exclude all sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any Products covered hereby, all of which taxes and duties must be paid by Buyer. If Buyer claims any exemption, Buyer must provide a valid, signed certificate or letter of exemption for each respective jurisdiction. Buyer shall be solely responsible for obtaining any and all necessary licenses, registrations, certificates, permits, approvals or other authorizations required by federal, state or local statute, law or regulation pertaining to the use or possession of the products contemplated herein that include radioactive isotopes, or x-ray tubes if any. Buyer shall pay Seller such surcharges, or other fees, in respect of the sale of Products hereunder as Seller deems necessary and appropriate (in Sellers sole, good -faith, reasonable discretion) to account for changes in the cost to product, develop, market, or sell the Products to Buyer hereunder (whether as the result of the imposition of tariffs or otherwise). All such surcharges must be paid by Buyer in accordance with the payment terms set forth herein. Buyer agrees that such surcharges, or other fees, or any termination thereof, shall take effect immediately upon written notice thereof by Seller to Buyer. In the event that Sellers quote and/or order acknowledgement set forth surcharges, those documents shall be considered adequate written notice to Buyer that said surcharges are Buyers responsibility. Any such surcharges shall not constitute an increase in the Price(s) of any Products or Services sold under this Agreement 4. TE w; _ 1. Seller may invoice Buyer upon shipment for the price and all other charges payable by Buyer in accordance with the terms on the face hereof. If no payment terms are stated on the face hereof, payment shall be net thirty (30) days from the date of invoice. If Buyer fails to pay any amounts when due, Buyer shall pay Seller interest thereon at a periodic rate of one and one-half percent (1.5%) per month (or, if lower, the highest rate permitted by law), together with all costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) incurred by Seller in collecting such overdue amounts or otherwise enforcing Sellers rights hereunder. Seller reserves the right to require from Buyer full or partial payment in advance, or other security that is satisfactory to Seller, at any time that Seller believes in good faith that Buyers financial condition does not justify the terms of payment specified. All payments shall be made in U.S. Dollars. 5. DEU-VERY.QANCELLAIIQN--QB-CBMGES-B.Y_B.U.YEE. The Products will be shipped to the destination specified by Buyer, F.O.B. shipping point. Seller will have the right, at its election, to make partial shipments of the Products and to invoice each shipment separately. Seller reserves the right to stop delivery of Products in transit and to withhold shipments in whole or in part if Buyer fails to make any payment to Seller when due or otherwise fails to perform its obligations hereunder. All shipping dates are approximate only, and Seller will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond Seller's reasonable control. In the event of a delay due to any cause beyond Seller's reasonable control, Seller reserves the right to terminate the order or to reschedule the shipment within a reasonable period of time, and Buyer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay. Products as to which delivery is delayed due to any cause within Buyer's control may be placed in storage by Seller at Buyers risk and expense and for Buyer's account. Orders in process may be canceled only with Sellers written consent and upon payment of Seller's cancellation charges. Orders in process may not be changed except with Seller's written consent and upon agreement by the parties as an appropriate adjustment in the purchase price therefor. Credit will not be allowed for Products returned without prior written consent of seller. 6. .,.(+fNT10� �R,�. Buyer must obtain permission from Seller prior to returning Products. The request must be received within ten (10) days of receipt of the Products. Older items, service parts, and discontinued items cannot be returned for credit. In order to obtain a RMA number, Buyer must contact Sellers customer support. Seller, in its discretion, may impose a twenty (20%) percent restocking charge of the price paid for any item authorized for return for credit 7.:j1ILE_ N0 ,;US ..QE_ S;S. Notwithstanding the trade terms indicated above and subject to Sellers right to stop delivery of Products in transit, title to and risk of loss of the Products will pass to Buyer upon delivery of possession of the Products by Seller to the carrier irrespective of which Party's carrier is used for the transport or the manner of payment ascribed to the transport; provided, however, that title to any software incorporated within or forming a part of the Products shall at all times remain with Seller or the licensor(s) thereof, as the case may be. 8. 'jARRAN'1'Y. Seller warrants that the Products will operate or perform substantially in conformance with Seller's published specifications and be free from defects in material and workmanship, when subjected to normal, proper and intended usage by properly trained personnel, for the period of time set forth in the product documentation, published specifications or package inserts. If a period of time is not specified in Sellers product documentation, published specifications or package inserts, the warranty period shall be one (1) year from the date of shipment to Buyer for equipment and ninety (90) days for all other products (the "Warranty Period"). During the Warranty Period, Seller agrees, in its sole discretion, to repair or replace, Products and/or provide additional parts or services as reasonably necessary to cause the same to perform in substantial conformance with said published specifications; provided that Buyer shall (a) promptly notify Seller in writing upon the discovery of any defect, which notice shall include the product model and serial number (if applicable) and details of the warranty claim; and (b) after Sellers review, Seller will provide Buyer with service data and /or a Return Material Authorization ("RMA), which may include biohazard decontamination procedures and other product -specific handling instructions, then, if applicable, Buyer may return the defective Products to Seller with all costs prepaid by Buyer. Replacement parts may be new or refurbished, at the election of Seller. All replaced parts shall become the property of Seller. Shipment to Buyer of repaired or replacement Products shall be made in accordance with the Delivery provisions of the Seller's Terms and Conditions of Sale. Consumables are expressly excluded from this warranty. If Seller elects to repair defective device instruments, Seller may, in its sole discretion, provide a replacement loaner instrument to Buyer as necessary for use while the instruments are being repaired. Notwithstanding the foregoing, Products supplied by Seller that are obtained by Seller from an original manufacturer or third party supplier are not warranted by Seller, but Seller agrees to assign to Buyer any warranty rights in such Product that Seller may have from the original manufacturer or third party supplier, to the extent such assignment is allowed by such original manufacturer or third party supplier. In no event shall Seller have any obligation to make repairs, replacements or corrections required, in whole or in part, as the result of (i) normal wear and tear, (ii) accident, disaster or event of force majeure, (iii) misuse, fault or negligence of or by Buyer, (iv) use of the Products in a manner for which they were not designed, (v) causes external to the Products such as, but not limited to, power failure or electrical power surges, (vi) improper storage and handling of the Products or (vii) use of the Products in combination with equipment or software not supplied by Seller. If Seller determines that Products for which Buyer has requested warranty services are not covered by the warranty hereunder, Buyer shall pay or reimburse Seller for all costs of investigating and responding to such request at Seller's then prevailing time and materials rates. If Seller provides repair services or replacement parts that are not covered by this Warranty shall pay Seller therefor at Seller's then prevailing time and materials rates. ANY INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHER TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN SELLER WITHOUT SELLER'S PRIOR WRITTEN APPROVAL, OR ANY USE OF REPLACEMENT PARTS NOT SUPPLIED BY SELLER, SHALL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITH RESPECT TO THE AFFECTED PRODUCTS. THE OBLIGATIONS CREATED BY THIS WARRANTY STATEMENT TO REPAIR OR REPLACE A DEFECTIVE PRODUCT SHALL BE THE SOLE REMEDY OF BUYER IN THE EVENT OF A DEFECTIVE PRODUCT. EXCEPT AS EXPRESSLY PROVIDED IN THIS WARRANTY STATEMENT, SELLER DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. SELLER DOES NOT WARRANT THAT THE PRODUCTS ARE ERROR -FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT, 9.1. By Selle. Seller agrees to indemnify, defend and save Buyer, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's fees) ("Indemnified Items") for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third party claim covered by Seller's indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Buyer agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non -infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event(a) and (b) are not practical, refund to Buyer the amortized amounts paid by Buyer with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. 9.2. By Buyer. Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval 10. SOFTWARE. With respect to any software products incorporated in or forming a part of the Products hereunder, Seller and Buyer intend and agree that such software products are being licensed and not sold, and that the words "purchase", "sell" or similar or derivative words are understood and agreed to mean "license", and that the word "Buyer" or similar or derivative words are understood and agreed to mean "licensee". Notwithstanding anything to the contrary contained herein, Seller or its licensor, as the case may be, retains all rights and interest in software products provided hereunder. Seller hereby grants to Buyer a royalty -free, non-exclusive, nontransferable license, without power to sublicense, to use software provided hereunder solely for Buyer's own internal business purposes on the hardware products provided hereunder and to use the related documentation solely for Buyer's own internal business purposes. This license terminates when Buyer's lawful possession of the hardware products provided hereunder ceases, unless earlier terminated as provided herein. Buyer agrees to hold in confidence and not to sell, transfer, license, loan or otherwise make available in any form to third parties the software products and related documentation provided hereunder. Buyer may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software products provided hereunder without Seller's prior written consent. Seller will be entitled to terminate this license if Buyer falls to comply with any term or condition herein„ Buyer agrees, upon termination of this license, immediately to return to Seller all software products and related documentation provided hereunder and all copies and portions thereof 11. LIMITATION OF LIABI' I) Y,,. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE LIABILITY OF SELLER UNDER THESE TERMS AND CONDITIONS (WHETHER BY REASON OF BREACH OF CONTRACT, TORT, INDEMNIFICATION, OR OTHERWISE, BUT EXCLUDING LIABILITY OF SELLER FOR BREACH OF WARRANTY (THE SOLE REMEDY FOR WHICH SHALL BE AS PROVIDED UNDER SECTION 8 ABOVE)) SHALL NOT EXCEED AN AMOUNT EQUAL TO THE LESSER OF (A) THE TOTAL PURCHASE PRICE THERETOFORE PAID BY BUYER TO SELLER WITH RESPECT TO THE PRODUCT(S) GIVING RISE TO SUCH LIABILITY OR (B) ONE MILLION DOLLARS ($1,000,000). NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR (LOSS OF USE OF FACILITIES OR EQUIPMENT„ LOSS OF REVENUE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL)„ REGARDLESS OF WHETHER SELLER (a.) 14AS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR (b) IS NEGLIGENT' 1. _ ITT -TRI jONS. Buyer acknowledges that each Product and any related software .and technology, including technical information supplied by Seller or contained in documents (collectively "Items"), is subject to export controls of the U,S. govemment. The export controls may include, but are not limited to, those of the Export Administration Regulations of the 'U.S. Department of Commerce (the "EAR"), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries. Buyer shall comply with the EAR and all other applicable laws, regulations, laws, treaties, and agreements relating to the export, re-export, and import of any Item Buyer shall not, without first obtaining the required license to do so from the appropriate U.S. government agency; (1) export or re-export any item, or (;li) export„ re-export" distribute or supply any Item to any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied' or restricted by the U.S. government. Buyer shall if requested by Seller„ provide information on the end user and end use of any Item exported by the Buyer or to be exported by the Buyer, Buyer shall cooperate fully with Seller in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and shall indemnify and hold Seller harmless from, or in connection with, any violation of this Section by Buyer or its employees, consultants„ or agents 13 HAZARUQUaMAILRIALS. Some Products may require special packaging„ labeling, marking and handling, Carriers may add additional freight charges for the handling or transporting of these materials. The consolidating of such material with other Products may be prohibited. Additional freight charges will be billed per Seller's shipping terms, Be sure to advise Seller of shipping instructions for these hazardous materials to reduce your freight costs 14. MISCELLANEM. (a) Buyer may not delegate any duties nor assign any rights or claims hereunder without. Seller's prior written consent, and any such attempted delegation or assignment shall be void. (b) The rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of Indiana without reference to its choice of law provisions. Each arty hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts located in the county and state of ndi n6 in any action arising out of or relating to this Agreement (c) Both parties waive any right they may have under applicable law or otherwise to a right to a trial by jury. Any action arising under this Agreement must be brought within one (1) year from the state that the cause of action arose. (d) The application to this Agreement of the U.N. Convention on Contracts for the intemational Sale of Goods is hereby expressly excluded (e) In the event that any one or more provisions contained herein shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect„ the validity, legality and enforceability of the remaining provisions contained herein shall remain in full force, and effect„ unless the revision materially changes the bargain. (f) Seller's failure to enforce„ or Seller's waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision. (9) Unless otherwise expressly stated on the Product or in the documentation accompanying the Product, the Product is intended for non -clinical, non -diagnostic„ non -therapeutic use only and is notto be used for any other purpose, including without limitation, unauthorized commercial uses, in vitro diagnostic uses, ex vivo or in vivo therapeutic uses, or any type of consumption by or application to humans or animals. (h) Buyer agrees that all pricing, discounts and technical information that Seller provides to Buyer are the confidential and proprietary 'information of Seller. Buyer agrees to (1) keep such information confidential and not disclose such information to any third party, and O use such infonration solely for Buyer's internal purposes and in connection with the Products supplied hereunder. Nothing herein shall restrict the use of information available to the general public. (i) Any notice or communication required or permitted hereunder shall be in writing and shall be deemed received when personalty delivered or three (3) business days after being sent by certified mail„ postage prepaid, to a party at the address specified herein or at such other address as either party may from time to time designate to the other 0) Seller hereby rejects and disclaims any rights of Buyer contained„ or obligations imposed upon Seller, in any document provided, referencedor otherwise submitted by Buyer, in each case, that Seller has not expressly included in these [terms and conditions) or a writing manually executed by Seller (including, without limitation, any rights of Buyer in respect of designs„ specifications, source code or intellectual property, owned„ created„ developed or licensed, by Seller; any rights to items or services not specifically identified in Seller's quotation„ any audit rights or financial offset rights of Buyer; any penalties or liquidated damages imposed upon Seller„ any obligation by Seller to comply with Health Insurance Portability and Accountability .Act. of 1996 (as amended), Current Good Manufacturing Practice regulations (as amended)„ the requirements, as amended„ of the Customs -Trade Partnership Against Terrorism or any code of conduct, quality program„ information security program, background or drug screening program or other guidelines, programs or policies, in each case" promulgated or required by Buyer; any obligation that Seller comply with any, law that, tinder taw, would not otherwise apply to Seller in respect of the transaction(s) contemplated hereby; any right of Buyer to withhold all, or any portion, of the purchase price of any products or services provided hereunder for any period of time„ any right of Buyer, Itself or through any third party, to remediate any defects in, replace or re -perform, any products or services provided hereunder at Seller's cost or expense; any obligation of Seller to waive, or require its insurers to waive„ any rights of subrogation; any obligation of Seller that would' impair, restrict or prohibit Seller's ability to freely conduct any business with any person or in any geography or market„ any early -payment, or other, discount; any obligation of Seller to maintain a supply of spares„ or otherwise make any services available, for any particular period of time; any representation„ warranty or other obligation of Seller to provide pricing comparable to, or more favorable than, the pricing that Seller provides to others; any restriction of, or prohibition oil, Seller's ability to modify, change or discontinue any of its products, processes or services; or any waiver by Seller of any right to enforce any of the terms hereof), 15. AND DE CRIBED IN THE RELEVANT QU IF YOU ARE PURCHASING ANY PRODUCTS PROVIDED BY SELLER HEREUNDER OTATION OR PURCHASE ORDER AS A SUBSCRIPTION TO ANY THERMO FISHER SOFTWARE -AS -A -SERVICE OFFERING (ANY SUCH PRODUCT, HEREINAFTER, A "SUBSCRIPTION"),THEN IN RESPECT OF SUCH SUBSCRIPTION(S) ONLY (a) The following terms and conditions of this Agreement shall not apply: Sections 6-7, 9.1, and 13. (b) The following terms and conditions of this Agreement shall be modified as set forth below: (i) Section 6 shall be replaced In its entirety with the following: a. Seller reserves Ilia right to suspend or terminate the Buyers Subscription(s)„ in whole or in part, if Buyer fails to make any payrrient to Seller when due, otherwise fails to perform its obligations hereunder, or fails to comply witf� Ilia Seller's Terms of Use agreement agreed to by Buyer and governing Buyer's use of the Subscription(s), as in effect from time to time (the °'Terms of Use""). Seller will not tie liable f'or any toss or damage resulting from any delay in activation of the Subscriptions) or failure to activate the Subsoription(s) which is due to any cause beyond Seller's reasonable control', In the event of a delay dui to any Dense beyond Seller's reasonable control, Seller reserves the right to terminate the order or to reschedule the activation of the Subsciiptron(s) within a reasonable period of time, and Buyer will not be entitled to refuse payment or otherwise be relieved of any obligations as the resent of such delay. Orders in process may be canceled only with Seller's written consent and upon payment of Seller's cancellation charges. Orders in process may not be changed except with Seller's written consent and upon agreement by the parties as an appropriate adjustment in the purchase price therefor. (ii) Section 8 shall be replaced in its entirety with the following, 8. WARRANTY. BUYER AGREES AND ACKNOWLEDGES THAT THE SUBSCRIPTIONS ARE SOLD "AS -IS", WITH NO WARRANTIES EXPRESSED OR IMPLIED. SELLER DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, ORAL OR WRITTEN, WITH RESPECT TO THE SUBSCRIPTIONS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. (iii) Section 10 shall be replaced in its entirety with the following: 10. BDUWAa. This Agreement shall not be construed to grant to Buyer any patent license, know-how license or any other rights except as specifically provided herein. Buyer agrees and acknowledges that, by virtue of its purchase of the Subscriptions hereunder, it does not acquire any intellectual properly rights (whether by license, assignment, or otherwise) of Seller, including without limitation any rights to the Subscriptions or related software or hardware systerrns (except for the limited right to use the Subscription subject to the terms and conditions set forth herein), Buyer shall not reverse engineer or copy the design, algorithms, or code, or any components thereof, of any information related to the Subscriptions for any purpose. (iv) In Section 11, the language "ONE MILLION DOLLARS ($1,000,000)" shall be replaced with "TEN THOUSAND DOLLARS ($10,000)". (c) The following additional terms and conditions shall apply TERMS OF USE. Buyer hereby acknowledges and agrees that it shall comply with all terms and conditions of the Terms of Use, and that Buyer's use of the Subscription in violation of any such terms and/or conditions shall entitle Seller, without prejudice to any other remedies that may be available to Seller at law or in equity, to terminate Buyer's use of the Subscription(s) effective immediately. Buyer further agrees and acknowledges that it shall not be entitled to any refund of any portion of the purchase price paid in respect of Subscription(s) cancelled by Seller pursuant to Seller's rights under this Section and/or the Terms of Use. Buyer's rights to use these Subscription will begin upon Seller's transmission to Buyer of Subscription link and end 12 months from this date unless otherwise terminated by Seller. In the event of any conflict between this Agreement and the Terms of Use, the Terms of Use shall control. ThermoRsher S C I E N T I F I C January 2019 RE: Request for Sole Service / Sole Brand Justification To whom it may concern, The world leader in serving science Thermo Scientific Portable Analytical Instruments, Inc. 2 Radcliff Rd. Tewksbury, MA 01876 978-657-5555 phone 978-657-5921fax The purpose of this letter is to provide additional justification for why Thermo Scientific Portable Analytical Instruments Inc. ("Manufacturer") is the sole source service provider for its Thermo ScientificTM handheld chemical analyzers ("Safety and Security Products"). Such Safety and Security Products deliver rapid, field - based identification of unknown chemicals, explosives, and chemical weapons, as well as narcotics directly from within the hazard zone and provide specific, actionable data— enabling first responders, national security, and military organizations to act quickly and decisively. Thermo Scientific Portable Analytical Instruments Inc. is the sole manufacturer of the FirstDefender RMX, RM, TruDefender FTX, FTXi, FT, FTi, Gemini and TruNarc from its sole manufacturing location at 2 Radcliff Rd Tewksbury, Massachusetts USA. These devices utilize the proprietary chemometrics and DecisionEngine 2.0 MX analysis software also produced solely by Manufacturer. No other device of this kind on the market can make use of this software as it would be a violation of intellectual property protections held by Manufacturer. Manufacturer also is the sole provider of software and library updates. Additionally, Manufacturer has developed a rugged handheld chemical identification system for solids and liquids that uses both FTIR and Raman technologies known as Gemini. Gemini is the first and only handheld that offers both Raman & FTIR technologies as well as scan delay for both Raman & FTIR. Due to their mission critical applications Manufacturer utilizes the expertise of its trained technicians and engineering staff to perform all necessary repairs. Additionally, the technicians must utilize proprietary software, intellectual property (technical documentation), calibration files and algorithms, as well as specialty tooling designed by Manufacturer in order to properly repair the Safety and Security Products in accordance with published specifications. For those reasons, coupled with complexity and overall safety, Manufacturer, is the sole service provider for our Safety and Security Products possessing unique qualifications and/or specialized capabilities or expertise that is not available in the marketplace. Matthew Quinn Thermo Scientific Portable Analytical Instruments Inc. Government Contracts Manager Thermo Fisher Scientific Themes Scientific 2 Radldtf Road Tewksbury, MA 01876 +1 978 670-7460 ph aM6k wrdrtntMCiir,oni Portable Analytical Instruments USA +1 97B 670-7430fax I 'hermo Scienfil"fic Field -based presumptive narcotics, precursor and cutting agent testing ThermoRsher S C I E N T I F I C r The TruNarc I ................. larldheld Narcotics Analyzer Tests for almost 500 substances, including narcotics, stimulants, depressants, hallucinogens and analgesics • Library regularly updated to include emerging drug threats + Requires no direct contact with most substances m Delivers clear, real-time results for presumptive evidence • Provides automated, tamper -proof records with scan results, including time -and -date stamps to help expedite prosecution TrL]Narc'. E'I-ffiden-t, Economical, Safe Agencies across the United States who deploy TruNarc are seeing immediate benefits: • Even little known substances can be identified almost instantly in the field • The need for Law Enforcement Officers to handle potentially lethal narcotics is greatly reduced • Valuable lab time is freed up for higher priority cases • Reduced demand for lab testing delivers significant cost savings ruNarc Success Stor'ies . . . . . ... Quincy PD, Massachusetts: Little- Charles County, Maryland: known Drugs Identified Quickly Improved Protection for Law • TruNarc immediately identified an unknown Enforcement Officers sample as Alpha-PVP ("Flakka") a synthetic Using TruNarc, officers quickly identified cathinone fentanyl (a potent opiold absorbed by • Official state-wide alert about new drug touch, potentially causing overdose or issued next day death) in heroin seizure. "The safety of our officers is one of Etowah County, Alabama: Reduced our top priorities, and this technology nx Court Wait Times will allow us to safely identify controlled • "We're definitely seeing a benefit because dangerous substances quickly and accurately without having to wait on of TruNarc. We're able to take cases to the lab results. grand jury where before we didn't have a Charles County toxicology report. Now, a defendant doesn't have to wait for his day in court. It's been a godsend. — Etowah County �Jmp�_OFA Officers Safe The use of illicit narcotics and opioids continues to skyrocket. Emerging lethal drugs like fentanyl and carfentanil threaten public safety. To save lives and protect law enforcement officers, banned substances need to be identified quickly, safely and accurately. The Thermo ScientificTM TruNarCTm Analyzer rapidly identifies drugs and can reduce the backlog of cases at crime labs while decreasing costs. This leads to quicker case resolution and helps drug offenders access treatment faster. Size Library Controlled substances, cutting agents and precursors Configurations Unlimited or Pay -Per -Scan Data export formats CSV, SPC, PDF, SCZ, SCN Battery Rechargeable internal 3.7V battery pack (10 hrs.); DC wall adapter, 5V DC, 1.5A; optional car charger Operating temperature 14' F to 122' F (- 10' C to +50' C) Language configurations English, Arabic, Chinese, Czech, Dutch, French, Japanese, Polish, Russian, Spanish Computer administration TruNarc Admin software connected via microUSB to USB Reachback support Spectral analysis by staff chemists available Validation Third party test results available on request To learn more about the TruNarc or schedule a demo, ThermoRillisher please visit us on line at: thermofisher-com/trunarc S C I E N T I F I C 0 2019 Thermo Fisher Scientific Inc. All rights reserved. All trademarks are the property of Thermo Fisher Scientific Inc. and its subsidiaries. Not all products are available in all counbries. Please consult your local sales representatives for details. RB 1810320 1019 v03 701 W. SAMPLE STREET SOUTH BEND, INDIANA 46601-2890 CITY OF SOUTH BEND JAMES MUELLER, MAYOR PHONE 574/235-9311 FAx 574/288-0268 SOUTH BEND POLICE DEPARTMENT SCOTT A. RUSZKOWSKI, CHIEF OF POLICE Board of Public Works January 31, 2020 City of South Bend, Indiana Honorable Board Members, The South Bend Police Department is requesting Board approval for purchase of a TruNarc Unlimited narcotics analyzer. The device enables officers to scan just under 500 controlled substances in a single definitive test. The device will allow for testing of narcotics officers may encounter in the field while conducting investigations or searches or during the apprehension of or arrest of a suspect. It will allow for testing of the suspected narcotic without the officer having to come in direct contact with the potentially dangerous substance. Using a TruNarc analyzer will allow for quicker identification of suspected narcotics and save time an officer will spend in the field manually testing separate substances. It will also reduce backlogs in the crime lab and will reduce the cost of purchasing singular drug kits. This purchase qualifies as a sole source purchase as allowed under I.C. § 5-22-10-8(1) as noted in the letter provided along with the other supporting documents. The funding source is 216-0801-421.43-06. Thank you, Mark Dollinger Director of Logistics & Purchasing South Bend Police Department S ERVICE BRAVERY RIDE IJ EDICATION BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 1 /31 /2020 Name Mark Dollinger Department SBPD BPW Date 02-11-20 Phone Extension 7677 mm, Prior to Submittal to Board Diversity Compliance and Inclusion Officer ❑ Officer Name BPW Attorney Attorney Name Clara McDaniels Dept. Attorney ® Attorney Name Geovanny Martinez g ® ..__ Daniel..�........� Purchasing Parker ..... _... u_ Check the A Mrgp at Item l" aReq Professional Services Agreement Contract El Open Market Contract Amendment/Addendum ] Bid Opening ❑ Bid Award El Quote Opening ❑ Quote Award E] Proposal Opening El C/O & PCA No. ❑ Chg. Order, No. ❑ Traffic Control ® Other: Special ecial Purchase Company or Vendor Name New Vendor MBE/WBE Contractor Project Name Project Number Funding Source Account No. Amount Terms of Contract Purpose/Description Amount of Previous Amount Current Percent of Change: New Amount Total Percent of Change: Time Extension Amount: All Submissions L j Proposal ❑ Special Purchase, QPA [:1 Req. to Advertise El Reject Bids/Quotes R PCA ❑ Resolution ❑ Ease./Encroach ❑ Title Sheet Thermo Scientific Portable Analytical. Instruments Inc. - Z s o If Yes, Approved by Purchasing NoN_ [� MBE Completed E-Verify Form Attached Yes ❑ WBE No TruNarc Drug Analyzer Equipment Purchases/Police Equipment 216-0801-421.43-06 $31,753 Testing of narcotics and other drugs officers encounter in the field while conducting and/or apprehension of suspects. This device can detect just under 500 substances instantly in the field and allow the officer to not have direct contact with the substances which could pose a potential danger to the officer. The Liclhasc would be a sole source under IC 5-22-10-8 "1 , For Cbal1 � Orders 0111 Increase $ Decrease �$ Increase % Decrease � Increase...d..._..�..._-_..._ ..�....%- Decrease ( %