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") is made as of June 08, 2023 (the "Effective Date
") by and between
, an individual
with an address at
, a company
with an address at
This Agreement describes Party-1's purchase of Services and Deliverables from Party-2.
in consideration of the mutual promises and covenants contained in this
Agreement, the parties hereby agree to the following terms and
(a) "Deliverables" means the deliverables Party-2 provides to Party-1 as described in this Agreement.
(b) "Government Authority"
means any governmental authority or court, tribunal, agency,
department, commission, arbitrator, board, bureau, or instrumentality
of the United States of America or any other country or territory, or
domestic or foreign state, prefecture, province, commonwealth, city,
county, municipality, territory, protectorate or possession.
(c) "Law" means
all laws, statutes, ordinances, codes, regulations and other
pronouncements having the effect of law of any Government Authority.
(d) "Services" means the services Party-2 provides to Party-1 as described in this Agreement.
2. SERVICES. Party-2 agrees to provide the following Services: [QR-42]
(a) Competence. Party-2 agrees to
provide the Services through fully trained and competent personnel or
subcontractors having a skill level appropriate for the tasks assigned
to them. [QR-60]
(b) Key Personnel and Project Managers. Below appears an initial designation of a project manager for each party who is the principal point of contact between the parties for all matters under this Agreement. Either party may designate a new project manager by written notice to the other party. Party-1's project manager: Party-2's project manager: [QR-64]
4. DELIVERABLES. Party-2 agrees to provide the following Deliverables: [QR-43]
5. MANUFACTURING DESIGN REQUIREMENTS.
(a) Software Deliverables. Each Deliverable to be supplied under this Agreement may incorporate computer software as part of that Deliverable. Computer software that is developed by Party-2 specifically for Party-1 under this Agreement ("Custom Software") must be delivered to Party-1 with each Deliverable, including source code, and all the intellectual property and proprietary rights in such Custom Software, including the source code, vests as stated in the section entitled "Intellectual Property" in this Agreement. Computer software of third party vendors may also be integrated into each Deliverable ("Third Party Software"). Party-2 agrees to assign to Party-1 (or secure for Party-1 at no additional cost) all rights under Party-2's Third Party Software licenses so that Party-1 can fully use the Deliverables as contemplated under this Agreement. Each Deliverable may also include software that has been developed by Party-2, at Party-2's expense, for general use in Party-2 products which are proprietary to Party-2 ("Software Deliverables"). Upon full payment for each respective Deliverable, the Party-2 Standard Software is licensed to Party-1 as follows: Party-2 grants Party-1 a perpetual, non-exclusive, worldwide, non-transferable, and non-sublicenseable license to use the Software Deliverables for Party-1's internal business purposes. This license survives the Agreement, but may be terminated in the same way described in the provision entitled "Termination for Breach" in this Agreement. [QR-108]
(b) Spare Parts. Party-2 hereby covenants that it will maintain an inventory of spare parts in good working order to be available to Party-1, including custom spare parts, needed for the repair and maintenance of the Deliverable for a period of five (5) years. These spare parts will be made available to Party-1 at the same price Party-2 generally charges Party-2's customers. [QR-130]
(c) Manufacturing Records. Party-2 agrees to retain all records relating to the manufacturing of Deliverables for a period of not less than ten (10) years from the date of manufacture of each Deliverable. [QR-131]
6. DEADLINE. The Services and Deliverables will be provided within the following number of days after the Effective Date: [QR-45] [QR-57]
(a) Ownership, Title, and Risk of Loss. Ownership of, title to, and risk of loss for the Deliverables passes to Party-1 upon Party-2's delivery of the Deliverables to a nationally reputable carrier, fully insured with a nationally reputable insurer (such insurance may be invoiced to Party-1 at cost). [QR-86]
Without limiting any other terms and conditions set forth in this
Agreement, Party-2 agrees to pass through or assign to Party-1 any
third party warranty and any other rights, rebates, discounts or
benefits, which Party-2 receives in connection with any Deliverables.
Party-2 agrees to deliver with the Deliverables two (2)
copies of the documentation and other materials that Party-2 ordinarily
provides to purchasers of the Deliverables.
8. ACCEPTANCE. After delivery of a Deliverable, Party-1 has thirty (30) days (the "Test Period")
to test the Deliverable. If Party-1 fails to notify Party-2 of any
nonconformities with this Agreement or Documentation for the
Deliverable (collectively, "Nonconformities")
within the Test Period, Party-1 is deemed to accept the Deliverable.
The day that Party-1 accepts or is deemed to have accepted the
Deliverable is the "Acceptance Date". If, before the Acceptance Date,
Party-1 discovers any Nonconformities and notifies Party-2, Party-2
agrees to promptly (but no later than fifteen (15) days later) correct
the Nonconformities at its own expense and notify Party-1 when the
corrections are complete, at which point Party-1 may engage in a second
Test Period. If Party-1 finds Nonconformities during a second Test
Period, then Party-1 may: (i) continue to successively require Party-2
by notice to correct the Deliverable followed by a Test Period; or (ii)
upon notice to Party-2 obtain a refund of any payment already made by
Party-1 for this Deliverable, in which case Party-1 is relieved of any
further duty to pay for this Deliverable and Party-1 may, in its sole
discretion, terminate this Agreement and may return the Deliverable to
Party-2 at Party-2's expense. "Documentation"
means the user manuals and other published material applicable to the Deliverables, including the functional specifications for
9. FEES. Except as expressly stated in this Agreement, there are no additional fees, charges or expenses incurred. In consideration for Party-2 performing all obligations under this Agreement, Party-1 agrees to pay Party-2 a flat fee of: [QR-53] [QR-56] If any affiliate of Party-1 gives notice to Party-2 of an offer to make a purchase from Party-2 under the same fees, terms and conditions stated in this Agreement, then Party-2 agrees to accept each such offer. Under this Agreement, "affiliate" means: (a) any corporation or business entity of which fifty one percent (51%) or more of the voting stock or voting equity interests are owned directly or indirectly by a party to this Agreement; or (b) any corporation or business entity which directly or indirectly owns fifty one percent (51%) or more of the voting stock or voting equity interests of such party; or (c) any corporation or business entity directly or indirectly controlling or under control of a corporation or business entity described in (a) or (b). [QR-55] If Party-1 pays within ten (10) days of the date of Party-1's receipt of an invoice, then Party-2 will deduct from the next invoice a credit equal to two percent (2%) of the invoiced amount. [QR-113] [QR-59]
10. INVOICES AND TAXES. Party-1
agrees to pay to Party-2 all fees owed under this Agreement within
thirty (30) days after the date of Party-1's receipt of a complete
invoice. A complete invoice is one that contains the invoice number,
invoice date, description of the transaction, total invoice amount with
miscellaneous charges listed separately and payment terms consistent
with and not additional to any provisions under this Agreement. To the
extent that the transactions under this Agreement are subject to any
sales, use, value added or any other taxes, payment of these taxes, if
any, is Party-1's responsibility. Party-2 is liable for any and all
taxes on any and all income it receives under this Agreement.
11. RECORDS AND AUDITS.
(a) Retention of Financial Records.
Party-2 agrees to maintain complete and accurate books and records
regarding all financial matters under this Agreement in accordance with
generally accepted accounting practices during the Term and for a
period of at least six (6) years following the date of termination or
expiration of this Agreement and for any additional time required by
Government Authority with jurisdiction over Party-2 (the "Retention
Period"); provided, however, that if any dispute arises with respect to
this Agreement, the Retention Period lasts until the resolution of the
dispute becomes final and non-appealable and all obligations of the
parties are fully satisfied.
Party-1 or its designee has the right, during the Term and the
Retention Period, to audit and inspect at Party-1's expense, during
normal business hours and with reasonable advance notice, Party-2's
books and records and any materials described in this provision or
elsewhere expressly indicated as auditable under this Agreement.
Party-2 agrees to reasonably cooperate in any audit or inspection of
such records that Party-1 may undertake. During the Retention Period,
Party-2 agrees to:
(i) Availability and Copying.
Make its books and records, as well as external audit opinions,
external audit letters, external audit statements, and external audit
reports relating to Party-2's obligations under this Agreement available
for inspection by Party-1 and or its authorized representatives, who
will have the right to make copies on Party-2's premises or by taking
any of these materials to an off site location for the sole purpose of
copying at Party-1's expense.
In connection with the audit, give Party-1's authorized representatives
reasonable access, during regular business hours, to Party-2's
officers, employees and other representatives, including, without
limitation, attorneys and accountants.
(iii) Reasonable Working Conditions.
Provide, without charge, computer access, office space, furniture,
telephone, and electric service as necessary for Party-1's authorized
representatives to conduct the audit.
If an auditor notifies Party-2 that Party-2 overcharged Party-1 with a
reasonable description of how the auditor calculated the overcharge,
Party-2 agrees to pay Party-1 the amount of the overcharge. Party-1
agrees to pay the costs of the audit unless the overcharge exceeds five
percent (5%), in which case Party-2 agrees to pay the costs of the
12. INTELLECTUAL PROPERTY RIGHTS IN THE DELIVERABLES. INTENTIONALLY LEFT BLANK BY THE PARTIES. [QR-47] [QR-52]
(a) Mutual Warranties. Each party represents, warrants and covenants to the other that:
(i) General. It: (a) is a company
duly organized and validly existing and in good standing under the Laws
of its jurisdiction of organization; (b) is qualified or licensed to do
business and in good standing in every jurisdiction where qualification
or licensing is required; and (c) has the corporate power and
authority to negotiate, execute, deliver and perform its obligations
under this Agreement.
(ii) Law Compliance. It complies with all applicable Laws.
(b) Warranties by Party-2. Party-2 represents, warrants and covenants to Party-1 that:
(i) Warranty Length. For a period of thirty (30) days after receipt, the Services and Deliverables conform to the requirements of this Agreement, are free from any defect in material and workmanship, and are free of all liens, claims and encumbrances of any kind. [QR-68]
(ii) Infringement. The Services and
Deliverables do not violate any patent, trade secret, or other
intellectual property or proprietary rights of any third party, and as
of the Effective Date.
(iii) No Litigation. There is no
actual or threatened litigation: (a) that affects its ability to comply with this
Agreement, or (b) concerning the Services or Deliverables.
(iv) Services Performance. The
Services are performed in a professional and competent manner,
conforming to generally accepted standards applicable to services
provided by nationally recognized firms specializing in the area of
Services provided under this Agreement. Each of the
individuals assigned to provide any Services under this Agreement
have the proper skill, training, and background to provide the Services.
(c) Disclaimer. EXCEPT AS EXPRESSLY
STATED IN THIS AGREEMENT, PARTY-1 AND PARTY-2 EACH MAKE NO
REPRESENTATIONS AND EXTEND NO WARRANTIES OR COVENANTS OF ANY KIND,
EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
14. LIMITATION OF LIABILITY. THIS
LIMITATION OF LIABILITY PROVISION APPLIES IN THE AGGREGATE AND NOT ON A
PER CLAIM BASIS, WHETHER ANY DAMAGES ARE CHARACTERIZED IN TORT,
NEGLIGENCE, CONTRACT, OR OTHER THEORY OF LIABILITY, REGARDLESS OF
WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE
FORESEEN ANY DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF ESSENTIAL
PURPOSE OF A LIMITED REMEDY. THIS LIMITATION OF LIABILITY PROVISION
DOES NOT LIMIT A PARTY'S LIABILITY FOR GROSS NEGLIGENCE,
INDEMNIFICATION OBLIGATIONS, BREACH OF CONFIDENTIALITY REQUIREMENTS,
INTENTIONAL MISCONDUCT, INTENTIONAL TORTS AND INTENTIONAL VIOLATIONS OF
LAW. NEITHER PARTY IS LIABLE TO THE OTHER OR ANY THIRD PARTY UNDER THIS
AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY,
OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RESULTING FROM THIS
EACH PARTY'S LIABILITY SHALL NOT EXCEED THE AMOUNTS PAID UNDER THIS
AGREEMENT IN THE ONE (1) YEAR PERIOD PRIOR TO THE DATE THE CLAIM AROSE.
15. INDEMNIFICATION. The term "Claim" means any claim, suit or action by any third party, and the term "Losses" means any damages awarded and fines assessed in any Claim by a court of competent jurisdiction or pursuant to an arbitration proceeding, any amounts due under Claim settlement, and any other costs or expenses incurred in complying with any injunctive or equitable relief or any settlement requirements.
(a) Party Indemnification.
(i) Indemnification by Party-2. Upon receipt of notice from Party-1 requesting Party-2 to do so, Party-2 agrees to indemnify, defend, and hold harmless Party-1 and its affiliates, subsidiaries, shareholders, members, directors, officers, employees, agents, and parents, from and against any Claim, and any associated Losses to the extent caused by violation of any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right due to Party-2 providing the Services or Deliverables (except to the extent a Claim is caused by Party-1's internally created specifications). [QR-38]
(ii) Indemnification by Party-1. Upon receipt of notice from Party-2 requesting Party-1 to do so, Party-1 agrees to indemnify, defend, and hold harmless Party-2 and its affiliates, subsidiaries, shareholders, members, directors, officers, employees, agents, and parents, from and against any Claim, and any associated Losses to the extent caused by violation of any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right to the extent caused by Party-1's internally created specifications or Party-1's use of the Services or Deliverables. [QR-39]
(b) Indemnification Procedures. The term "indemnifying party" means the party assuming indemnification obligations under this Agreement, and the term "indemnified party" means all parties, including any third parties, which the indemnifying party agrees to indemnify under this Agreement.
(i) Notice. The indemnified party must give the indemnifying party prompt written notice of a Claim, provided, however, that failure of an indemnified party to give prompt written notice does not relieve the indemnifying party from its indemnification obligations under this Agreement except to the extent the defense is materially prejudiced by the failure. When the indemnifying party receives notice of a Claim from an indemnified party, the indemnifying party agrees, at its sole cost and expense, to assume the defense of the Claim by representatives chosen by the indemnifying party. The indemnified party may participate in the defense of the Claim and employ counsel at its own expense to assist in the defense of the Claim, subject to the indemnifying party retaining final authority and control over the conduct of the defense.
(ii) Conduct of Defense. The indemnifying party's defense attorneys must be reasonably experienced and qualified in the areas of litigation applicable to the defense. The indemnifying party has the right to assert any defenses, causes of action or counterclaims arising from the subject of the Claim available to the indemnified party and also has the right to settle the Claim, subject to the indemnified party's prior written consent to the extent the settlement affects the rights or obligations of the indemnified party. The indemnified party agrees to provide the indemnifying party with reasonable assistance, at the indemnifying party's expense, as may be reasonably requested by the indemnifying party in connection with any defense, including, without limitation, providing the indemnifying party with information, documents, records and reasonable access to the indemnified party as the indemnifying party reasonably deems necessary.
16. TERM AND TERMINATION.
(a) Term. The term of this Agreement (together with any renewals, the "Term") begins on the Effective Date and expires one (1) year [QR-24] later. Immediately
upon expiration this Agreement automatically renews on the same terms
and conditions for additional successive periods of one (1) year on
each anniversary of the Effective Date, unless either party gives the
other party notice that the Agreement does not renew at least thirty
(30) days before the end of the then applicable Term. [QR-18]
The following captioned sections survive any termination, expiration or
non-renewal of this Agreement: "Disclaimer", "Limitation of Liability", "Indemnification", "Survival", "Publicity" and
"General", as well as any other provisions expressly stating that they are perpetual or survive this Agreement.
(c) Termination for Insolvency.
If either party is adjudged insolvent or bankrupt, or upon the
institution of any proceedings by it seeking relief, reorganization or
arrangement under any Laws relating to insolvency, or if an involuntary
petition in bankruptcy is filed against a party and the petition is not
discharged within sixty (60) days after filing, or upon any assignment
for the benefit of a party's creditors, or upon the appointment of a
receiver, liquidator or trustee of any of a party's assets, or upon the
liquidation, dissolution or winding up of its business (each, an "Event of Bankruptcy"),
then the party affected by any Event of Bankruptcy must immediately
give notice of the Event of Bankruptcy to the other party, and the
other party may terminate this Agreement by notice to the affected
(d) Termination for Breach.
If either party breaches any provision contained in this Agreement, and
the breach is not cured within thirty (30) days after the breaching
party receives notice of the breach from the non-breaching party, the
non-breaching party may then deliver a second notice to the breaching
party immediately terminating this Agreement.
17. FORCE MAJEURE. Any failure or
delay by a party in the performance of its obligations under this
Agreement is not a default or breach of the Agreement or a ground for
termination under this Agreement to the extent the failure or delay is
due to elements of nature or acts of God, acts of war, terrorism,
riots, revolutions, or strikes or other factor beyond the reasonable
control of a party (each, a "Force Majeure Event"). The party failing
or delaying due to a Force Majeure Event agrees to give notice to the
other party which describes the Force Majeure Event and includes a good
faith estimate as to the impact of the Force Majeure Event upon its
responsibilities under this Agreement, including, but not limited to,
any scheduling changes. However, should any failure to perform or delay
in performance due to a Force Majeure Event last longer than thirty
(30) days, or should three (3) Force Majeure Events apply to the
performance of a party during any calendar year, the party not subject
to the Force Majeure Event may terminate this Agreement by notice to
the party subject to the Force Majeure Event.
18. PUBLICITY. Each party agrees to
not make, publish or distribute (whether in print, electronically or
otherwise) any public announcements, press releases, advertising,
marketing materials or promotional materials regarding the execution or
performance of this Agreement without the prior written consent of the
19. GENERAL. Entire Agreement and Amendments. This Agreement is the entire agreement between the parties and supersedes all earlier and simultaneous agreements regarding the subject matter, including, without limitation, any invoices, business forms, purchase orders, proposals or quotations. This Agreement may be amended only in a written document, signed by both parties. Independent Contractors, Third Party Beneficiaries, and Subcontractors. The parties acknowledge that they are independent contractors under this Agreement, and except if expressly stated otherwise, none of the parties, nor any of their employees or agents, has the power or authority to bind or obligate another party. Except if expressly stated, no third party is a beneficiary of this Agreement. The parties may not subcontract any of their obligations under this Agreement. [QR-63] Governing Law and Forum. All claims regarding this Agreement are governed by and construed in accordance with the Laws of TEXTFIELD [QR-27], applicable to contracts wholly made and performed in such jurisdiction, except for any choice or conflict of Law principles, and must be litigated in TEXTFIELD [QR-28], regardless of the inconvenience of the forum, except that a party may seek temporary injunctive relief in any venue of its choosing. The parties acknowledge and agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Assignment. This Agreement binds and inures to the benefit of the parties' successors and assigns. Either party may assign, delegate, sublicense or otherwise transfer this Agreement, or any right or obligation under this Agreement, to a third party. [QR-46] No Waivers, Cumulative Remedies. A party's failure to insist upon strict performance of any provision of this Agreement is not a waiver of any of its rights under this Agreement. Except if expressly stated otherwise, all remedies under this Agreement, at Law or in equity, are cumulative and nonexclusive. Severability. If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original intent of the parties, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and jurisdictions. Notices. All notices, including notices of address changes, under this Agreement must be sent by registered or certified mail or by overnight commercial delivery to the address set forth in this Agreement by each party. Captions and Plural Terms. All captions are for purposes of convenience only and are not to be used in interpretation or enforcement of this Agreement. Terms defined in the singular have the same meaning in the plural and vice versa.
IN WITNESS WHEREOF, the parties execute this Agreement
as of the Effective Date. Each person who signs this Agreement below
represents that such person is fully authorized to sign this Agreement
on behalf of the applicable party.
Print Name: ___________________________
Print Name: ___________________________