Master Products and Services Agreement
Effective Date June 6, 2016
I. PURPOSE AND STRUCTURE OF AGREEMENT
1.1. Purpose of Agreement
(a) Buyer desires to enter into an agreement with Seller for the provision of the Products and/or Services to Buyer by Seller.
(b) Seller desires to enter into an agreement with Buyer to provide the Products and/or Services to Buyer as set forth in the Master Agreement and any Orders, Exhibits, Schedules and other documents that are attached hereto and/or incorporated by reference. Seller has the personnel, products, business processes and systems necessary to provide such Products and/or Services to Buyer.
(c) The purposes and objectives of Buyer and Seller for entering into the Agreement include:
- (i) Improving and streamlining the administrative and payment processes for companies that purchase products and/or services through Buyer’s platform, Cureate Connect (the “Platform”) by having Buyer operate as a general contractor and single point of contact for customer-vendor relations that result from such purchases. Individuals and entities that register on and subscribe to the Platform to purchase products and/or services from businesses are referred to herein as “Buyer Customers;”
- (ii) Improving and streamlining Buyer’s service and work order fulfillment processes by contracting with companies such as Seller to work as subcontractors that directly deliver Products and/or Services to Buyer Customers. Individuals and entities that register to sell their products and/or services through the Platform are referred to herein individually as a “Vendor” and collectively as “Vendors.” Seller is a Vendor that is a Party to this Agreement;
- (iii) Increasing scalability and flexibility of the Platform to meet the needs of Buyer Customers and Vendors;
- (iv) Continuing to lower the barriers to entry for Vendors that desire to do business with Buyer Customers; and
- (v) Increasing exposure of Buyer Customers to Vendors’ products and services.
(d) The provisions of this Section 1.1 are intended to state the purposes and objectives of the Agreement and are not intended to alter the plain meaning of the terms and conditions of the Agreement or to require either Party to undertake performance obligations not required by the Agreement. To the extent that the terms and conditions of the Agreement are unclear or ambiguous, such terms and conditions are to be interpreted and construed consistent with the purposes stated in this Section 1.1.
1.2. Structure of Agreement.
(a) Components of the Agreement. This Agreement consists of:
- (i) the provisions set forth in the Master Agreement and the Exhibits referenced herein; and
- (ii) any Orders executed (physically or electronically) by the Parties pursuant to this Agreement and attached hereto and any Schedules referenced therein.
(b) Definitions. All capitalized terms not otherwise defined in this Agreement have the meanings set forth in Exhibit 1 (Definitions).
(c) Orders. The Products and/or Services to be provided by Seller under this Agreement will be set forth in individual order forms, each of which will: (i) describe the Products and/or Services to be provided thereunder and related subject matter, including the prices, fees and expenses to be charged for such Products and/or Services (the “Charges”), the date on which Seller is to provide the Products and/or Services (the “Commencement Date”), the date on which Seller’s obligation to provide Products and/or Services to Buyer expires (the “Order Expiration Date”), the overall duration of the Order (the “Order Term”), and other relevant terms agreed upon by the Parties; and (ii) be executed (physically or electronically) by both Parties (each an “Order,” and collectively, “Orders”). Each Order shall be substantially in the form of Exhibit 2 (Form of Order), with such additions, deletions and modifications as the Parties may agree. Each Order is incorporated into the Master Agreement, and the applicable portions of the Master Agreement are incorporated into each Order. Orders may be added, adjusted, or terminated in Buyer’s sole discretion, and notice of any such change must be communicated electronically to Seller within seven (7) days of such change.
(d) Deviations from Master Agreement; Priority. In the event of a conflict between the terms of the Master Agreement and the terms of an Order, the terms of the Master Agreement shall control, unless the Order expressly notes any deviations from the terms of the Master Agreement. In the event of a conflict between the Master Agreement and the Exhibits referenced herein, the terms of the Master Agreement shall control. In the event of a conflict between the terms of an Order and the Schedules referenced in the Order, the terms of the Order shall control. In the event of a conflict between the terms of a Change Order and the terms of the Master Agreement, any Order(s), Schedule(s) and/or Exhibit(s) to which such Change Order applies, the Change Order shall control with respect to the scope and duration of such Change Order.
2. TERM OF AGREEMENT
2.1 Term of Agreement. The Term of the Agreement will begin on the Effective Date and will terminate upon the latest expiration date provided in an active Order, unless earlier terminated or extended in accordance with the provisions of the Agreement (the “Term”). The term of each Order will be for the period set forth therein.
2.2 Extension of Services. Buyer can request an extension of and Seller will extend the provision of Termination Assistance Services in accordance with Section 5.5 of this Agreement for an additional period of up to _____ months (the “Extension Period”), upon thirty (30) days’ written notice to Seller of the desired extension before the scheduled termination or expiration of its obligation to provide Products and/or Services to Buyer or upon Seller’s receipt of Buyer’s written request for an extension within thirty (30) days after the effective date of either Party’s notice of termination pursuant to Section 5 of this Agreement.
3. THE PRODUCTS AND SERVICES
3.1 Products and/or Services
(a) Duration. Starting on the Commencement Date of each Order, Seller shall provide the products ordered by Buyer, as set forth in one or more Orders (the “Products”) and/or perform the services requested by Buyer as set forth in one or more Orders (the “Services”) and provide such Products and/or Services to Buyer in accordance with the specifications and deadlines stated in the applicable Order(s) and the Agreement.
(b) Responsibilities. Buyer and Seller will each perform their respective duties, obligations, and responsibilities under this Agreement. Buyer’s failure to perform one or more of its responsibilities will excuse Seller’s obligation to perform its corresponding obligation(s) under the Agreement, if Seller provides written notice to Buyer of such failure and demonstrates that: (i) Buyer’s failure was the direct cause of Seller’s inability to perform; and (ii) Seller could not have continued performance by using reasonable methods, activities and procedures. In the event of (i) and (ii), Seller will be excused from providing those Products and/or Services impacted by Buyer’s failure to perform only to the extent that, and for so long as, Buyer’s failure to perform its responsibilities prevents Seller’s performance, and provided that Seller takes reasonable steps to mitigate the effects of Buyer’s failure to perform.
(a) Generally. See Section 1.2(c) and Exhibit 2 for the basic structure and content of Orders under this Agreement.
(b) Change Order. Buyer shall have the right to change the nature, scope, specifications and instructions as to any Products and/or Services to be provided under any Order and Seller agrees to comply with such change notices. Such changes require the Parties to amend the Order by executing a Change Order. If the change results in a decrease or increase in Seller's cost or in the time of performance, an adjustment in the price and time for performance will be made, if possible, as mutually agreed upon in writing. Seller shall be conclusively deemed to have waived all Claims against Buyer with respect to such change, unless Seller presents to Buyer an itemized statement of Claim against Buyer within twenty (20) calendar days following the receipt of the notice of such change.
(c) Order Terms. The initial term of each Order shall begin on the Commencement Date for the provision of the Products and/or Services ordered thereunder and shall remain in effect until otherwise directed by Buyer. Seller must invoice Buyer each week upon delivery of the Product and/or Services by 12:00 p.m. (noon) Eastern Time on the Friday of such week. If Seller does not provide an invoice by the designated date and time, the invoice will not be included until the following payment cycle and will be paid out on the defined net terms from when the invoice was received. Seller will specify its desired method of payment in the Order.
3.3 Services Provided by Buyer and Third Parties.
(a) Non-Exclusive Relationship. Seller is engaged under the Agreement on a non-exclusive basis to provide Products and/or Services hereunder. Accordingly, subject to Section 5.2(a), Buyer retains the right to provide or perform itself, or retain Third Parties to provide or perform, any product, service, function, responsibility, activity or task that is within the scope of the Products and/or Services or would constitute a New Product or Service.
(b) Seller Cooperation. To the extent Buyer provides any of the Products or performs any of the Services itself, or retains one or more Third Party Providers to do so, Seller shall cooperate with Buyer and/or such Third Party Providers, at no additional charge, as requested by Buyer from time to time. Seller’s obligations hereunder shall be subject to the Third Party Provider’s compliance with applicable laws, policies, standards and procedures and reasonable scheduling.
3.4. Performance and Disaster Recovery. Seller agrees that the provision of the Products and/or Services will meet or exceed the Service Level Specifications set forth by Buyer in the Order, as well as customary quality standards and standards of performance and professionalism in its industry. Seller also agrees to have a Disaster Recovery Plan to avoid unnecessary or prolonged service delays during a natural disaster or other service disruptions.
3.5 New Services.
(a) Buyer’s Requests for New Services. During the Term, Buyer may request that Seller provide New Products and/or Services. New Products and/or Services may be activities that are performed on a continuous basis for the extent of the Term or activities that are performed on a project basis. If, after review of the Order, the product or service qualifies as an existing Product or Service, the Parties will treat such product or service as an existing Product or Service and Seller will provide such product and/or service in accordance with its existing obligations and for the Charges associated with that Product and/or Service. If the product or service does not qualify as an existing Product or Service and an [Additional Resource Charge] or other charging mechanism does not exist for such service, then that product or service will be deemed a New Service. To request a New Service, Buyer will deliver a written request to Seller with reasonable detail regarding such product or service (the “New Service Request”).
(b) Seller’s Response. Within forty eight (48) hours after Seller’s receipt of Buyer’s New Service Request, Seller will prepare and deliver to Buyer a written response (the “New Service Response”) describing any changes in products, services, assignment of personnel and other resources that Seller believes is required. No New Service implementation shall occur without the mutual agreement of the Parties to the terms and conditions of such New Service. Any agreement of the Parties with respect to New Services must be in writing and will constitute an amendment to the Agreement and become a “Product” or “Service” and be reflected in a new Order hereto or in an amendment to an existing Order.
3.6. Reports. Seller will provide those reports identified in this Agreement and in the “Reports” Schedule to each Order, and such additional reports as the Parties may agree upon from time to time during the Term (collectively, “Reports”) in accordance with the requirements (including any timing requirements) set forth in the applicable Order and its accompanying Reports Schedule.
3.7. Quantities and Delivery. Seller shall deliver the Products and/or Services at the location, on the dates, and at the times specified by Buyer, unless otherwise agreed in writing by the Parties. All shipments, if any, are F.O.B. Destination and shall be made via carriers designated by Buyer and include all necessary documentation, including, but not limited to, any documentation specified on the Order. Title and risk of loss to and with respect to the Products will pass from Seller to Buyer upon either: (a) satisfactory delivery at the location, on the dates, and at the times specified by Buyer on the Order; or (b) delivery at the shipping destination. Seller and Buyer acknowledge and agree that time is of the essence in this Agreement.
3.8. Quality and Inspection. Payment for the Products and/or Services delivered hereunder shall not constitute acceptance thereof. Buyer reserves the right to inspect such Products and/or Services within a reasonable time after delivery, but such inspection does not relieve Seller of its obligations under this Agreement. Buyer shall have the right to reject any and all Products and/or Services that are, in its sole judgment, defective or nonconforming, and the same may be returned to Seller at Seller’s expense.
3.9. Facilities; Shared Service Facilities.
(a) Seller shall provide the Products and/or Services at the Facilities specified in the Order. The Parties shall use Change Orders to add, change or delete Facilities.
(b) If Seller provides any Products and/or Services to Buyer from a facility that is shared with one or more Third Parties or from a facility from which Seller provides services to one or more Third Parties, then Seller shall develop a process, subject to Buyer’s written consent, to restrict access to Buyer’s Company Information in any such facilities so that Seller’s contractors and/or employees who provide products and/or services to Third Parties do not have access to Buyer’s Company Information.
3.10. Malicious Code. “Malicious Code” is any computer virus, Trojan horse, worm, time bomb, or other similar code or hardware component designed to disable, damage or disrupt the operation of, permit unauthorized access to, erase, destroy or modify any Software, hardware, network or other technology. Seller shall use commercially reasonable efforts to ensure that the information systems, operating environments and processes Seller uses to provide the Products and/or Services to Buyer (including information, data and other materials delivered to or on behalf of Seller to Buyer, Buyer’s customers and/or Third Party Providers) are free of and do not otherwise transmit any Malicious Code via the use of Seller’s network or any products or services. If Seller does upload or otherwise introduce any Malicious Code into any products or services or other property of Buyer or otherwise transmits any Malicious Code via the use of Seller’s network, products or services, Seller shall, at its sole cost and expense, promptly eliminate such Malicious Code and otherwise be responsible for and remedy any damages, losses or other adverse effects suffered by Buyer, any licensors or licensees of Buyer, and other persons or entities, as a result of such Malicious Code.
4. INVOICING AND PAYMENT
4.1. Charges. In consideration of Seller’s provision of Products and/or Services under this Agreement, Buyer shall pay to Seller all such fees and expenses as are specified in the applicable Order(s) and properly invoiced in accordance with Section 4.2 of this Agreement. Charges set forth on any Order will remain in effect for one (1) year from the Commencement Date (as set forth in such Order). Seller shall provide sixty (60) days’ written notice to Buyer prior to changing the Charges described in such Order.
4.2. Invoices. No later than 12:00 p.m. (noon) Eastern Time on the Friday of the week in which the Product and/or Service was delivered, Seller shall submit to Buyer an invoice or invoices, in reasonable detail, of the Charges incurred during the week.
4.3. Payments. All amounts due to Seller and set forth on an invoice shall be due and payable within Net 30-45 days, dependent on the Buyer account outlined in the Order, of Buyer’s receipt of such invoice. Seller shall not invoice Buyer, and Buyer will not be obligated to pay, any Charges or Pass Through Charges that are not properly invoiced. The purchase price(s) for the Products and/or Services shall include any and all taxes, duties, freight, insurance, and all other similar costs. Buyer may pay the purchase price in cash, check or via credit/purchasing card.
4.4. Service Level Credits. If Seller fails to provide the Products and/or Services in accordance with the Service Level Specifications stated in the Order, Seller shall apply a 5% Service Level Credit against the charges owed to Seller in the month following the month in which the failure occurred. The Service Level Credit represents a discount for the reduced value of the Products and/or Services. Service Level Credits shall not be considered liquidated damages or penalties and shall not limit or diminish any of the remedies granted to Buyer under this Agreement, including the termination rights granted to Buyer. Buyer shall be entitled to pursue all remedies that it may have against Seller for the event or events giving rise to such Service Level Credits. Alternatively, at its sole election, Buyer may return to Seller any Service Level Credits received and pursue such remedies as Buyer may have against Seller for the event or events giving rise to such Service Level Credits.
4.5. Rights of Set-Off. With respect to any amount that: (1) should be reimbursed to Buyer under this Agreement; or (2) is otherwise payable to Buyer pursuant to this Agreement, Buyer may deduct the entire undisputed amount owed to Buyer against the charges otherwise payable or expenses owed to Seller under this Agreement.
4.6. Disputed Charges/Credits. If Buyer disputes the accuracy or applicability of a fee, expense, or credit or other financial arrangement described in this Agreement, Buyer shall notify Seller of such dispute as soon as practicable after the discrepancy is discovered. The Parties will investigate and resolve the dispute as expeditiously as possible through a mutually agreed upon process. Unpaid and uncredited monies that are the subject of a good faith dispute will not be considered a breach of, or a basis for monetary default under, this Agreement.
(a) Responsibility. Except as otherwise required by law, Seller is solely responsible for remitting to the appropriate taxing authority all applicable federal, state, and local sales, use, and other similar types of transfer Taxes or fees, interest, and penalties levied against Seller in connection with Seller’s provision of Products and/or Services hereunder.
(b) Exemptions. Notwithstanding anything to the contrary in the Agreement, Buyer will not pay or reimburse Seller for any taxes related to the provision of goods or services for which Buyer provides Seller with a valid and applicable exemption certificate, multi-state benefit certificate, resale certificate, or other reasonable evidence of exemption. Seller will make all reasonable efforts to ensure that any exemption from any Tax that is available to Buyer will be utilized when Seller makes any purchase on behalf of Buyer.
(c) Withholding Taxes. Seller shall be solely responsible for paying to any tax authority any foreign, federal, state and local Taxes or fees that are imposed against Buyer on or by reference to gross or net income or receipts and are required by law to be withheld by Buyer from payments to Seller under the Agreement. Buyer shall provide notice to Seller of any assertion of Withholding Tax liability by any tax authority and shall make available to Seller on a timely basis valid evidence of any Withholding Tax paid by Buyer to such tax authority.
(d) Cooperation. The Parties agree to reasonably cooperate with each other to enable each to more accurately determine its own Tax liabilities and to minimize Taxes incurred in connection with the Agreement to the extent legally possible.
4.8 Inspection and Audit. Seller shall retain all books and records and other documentation related to its provision of the Products and/or Services under this Agreement for a period of three (3) years following the date of expiration or termination of this Agreement. During the Term and the twelve (12) months immediately following the effective date of expiration or termination of this Agreement, Buyer and/or its designee shall have the right, upon at least five (5) Business Days’ notice to Seller and during Seller’s normal business hours, to inspect and Audit all Seller’s books and records and other documentation, systems, technology and facilities that are relevant to ascertaining Seller’s compliance with the terms and conditions of this Agreement. Without limiting the generality of the foregoing, Seller shall cooperate in good faith with Buyer and/or its designee to facilitate Buyer’s exercise of its rights under this Section 4.8. If any inspection or Audit reveals that Seller is not in compliance with the terms or conditions of this Agreement, Seller shall, at its sole cost and expense, promptly remedy the noncompliance.
5. TERMINATION AND CANCELLATION.
5.1. By its Terms. Seller shall cease providing Products and/or Services to Buyer on the effective date of expiration or termination of any Order and cease providing Products and/or Services to Buyer no later than the effective date of expiration or termination of this Agreement.
5.2. By Buyer. Buyer may terminate this Agreement or any Order in whole or in part for any of the following reasons:
(a) Convenience. For Buyer’s sole convenience with respect to any part of the Products and/or Services upon providing Seller with thirty (30) days’ advanced written notice of such termination;
(b) Material Breach. Buyer shall notify Seller of any material breach of the Master Agreement and/or any Order. Seller has thirty (30) Business Days following the date Seller receives the notice of material breach from Buyer to cure such material breach(es). If Seller fails to cure the material breach(es) within the designated time period, the Master Agreement and/or the Order to which the notice of breach applies shall terminate;
(c) Insolvency. Buyer may terminate this Agreement upon thirty (30) days’ written notice to Seller, if Seller or any Affiliate or subcontractor of Seller providing or performing a material portion of the Products and/or Services becomes insolvent, is unable to pay its debts, or enters into or files (or has filed or commenced against it) a petition, arrangement, application, action or other proceeding seeking relief or protection under the bankruptcy laws of the United States or similar federal or state laws of the United States or transfers all or substantially all of its assets to another person or entity;
(d) Change of Control of Seller. If there is a change of control of Seller, or if Seller acquires one of Buyer’s competitors, Buyer may terminate the Agreement upon sixty (60) days’ written notice to Seller given not later than one hundred eighty (180) days after the change in control or acquisition;
(e) Force Majeure Failure. Under the circumstances set forth in Section 15.3 of this Agreement; or
(f) Operation of Law. If new laws or regulations are implemented or the laws and/or regulations applicable to this Agreement are changed or repealed such that this Agreement or any portion hereof becomes unenforceable or illegal, Buyer may terminate the Master Agreement or any Order in compliance with such laws and/or regulations.
In the event of a partial termination of any Order, Buyer shall provide Seller with written notice of its intent to so terminate and specify a termination date that is at least thirty (30) days following the date of the termination notice, and Seller shall adjust the affected Order by removing the charges for the portion of the Products and/or Services that were terminated and adjusting any other terms that were affected by the partial termination of such Products and/or Services.
5.3. By Seller. Seller may terminate the Agreement for cause if Buyer does not pay Material Undisputed Amounts within sixty (60) days of the date on which they are due, provided that Seller notifies Buyer of such past due amounts within fifteen (15) days of the date on which such amounts were due and notifies Buyer again in writing within thirty (30) days of the date on which such amounts were due. For these purposes, “Material Undisputed Amounts” shall mean an amount equal to at least 50% of the material amount unpaid.
5.4. Termination Charges.
(a) Upon Termination for Convenience. If Buyer terminates the Agreement for convenience pursuant to Section 5.2(c) of this Agreement, Buyer shall pay Seller the applicable Termination Charge. In no other event shall Buyer be responsible for the payment of Termination Charges or any other fee, payment or penalty of any kind. The Termination Charges, if any, shall be determined in accordance with the Charges in the applicable Order, and shall be invoiced to Buyer by Seller within [insert time frame] of the effective date of termination.
(b) Cessation of Charges. Except as set forth in Section 5.4(a) and Section 5.5(d) of this Agreement, Buyer shall not be obligated to pay any Charge that would otherwise accrue and be payable by Buyer pursuant to the Agreement or any Order after the effective date of the expiration or termination of the Agreement or any such Order.
5.5. Termination Assistance Services.
(a) Cooperation. Seller will cooperate with Buyer to assist in the orderly transfer of the services, functions, responsibilities, tasks and operations comprising the Products and/or Services provided to Buyer by Seller or a Successor Seller under each Order in connection with the expiration or earlier termination of the Agreement and/or each Order for any reason, however described. The Services include Termination Assistance Services. The Termination Assistance Services include, but are not limited to: (i) providing Buyer and the Buyer Representatives with the services described in the “Termination Assistance Services” Schedule to each Order and such other portions of the Products and/or Services as Buyer may request; and (ii) providing Buyer and Third Parties participating in the transition activities with reasonable access to the business processes, materials, equipment, Software and other resources (including human resources) used by Seller to deliver the Products and/or Services as reasonably necessary to support the transition of the relevant Products and/or Services from Seller to performance by Buyer or one or more Successor Sellers of functions to replace such Products and/or Services; provided however, that such Third Parties comply with Seller’s reasonable security and confidentiality requirements, including execution of a confidentiality agreement consistent with each of the terms hereof. Neither the Term of the Agreement nor the term of any Order shall be deemed to have expired or terminated until the Termination Assistance Services thereunder are completed.
(b) Commencement. Upon Buyer’s request, Seller shall provide Termination Assistance Services in connection with migrating the work to another vendor commencing up to one (1) year prior to expiration, or upon and after any notice of termination or of non-renewal of the Agreement or any Order. In no event will Buyer’s holding of monies in compliance with Section 4.5 of the Master Agreement be considered a failure by Buyer to pay amounts due and payable hereunder. Further, Seller shall provide the Termination Assistance Services in accordance with this Section 5.5 even in the event of Buyer’s material breach, including an uncured payment default, with or without an attendant termination for cause by Seller, so long as Buyer pays Seller for the Termination Assistance Services in accordance with this Section 5.5.
(c) Duration. Termination Assistance Services shall be provided through the effective date of the expiration or termination of each Order being terminated. Upon request by Buyer, the effective date of such expiration or termination shall be extended for thirty (30) days from the date of Buyer’s request, unless otherwise agreed by the Parties.
(d) Charges. If any Termination Assistance Services provided by Seller require the utilization of additional resources that Seller would not otherwise use in the performance of the Agreement and applicable Orders(s), but for which there is a current baseline, Buyer will pay Seller for such usage at the then-current applicable Orders(s) charges and in the manner set forth in the applicable Order(s). If the Termination Assistance Services requires Seller to incur costs that Seller would not otherwise incur in the provision of the other Products and/or Services under the Agreement and applicable Order(s), then Seller shall notify Buyer of the identity and scope of the activities requiring that Seller incur such costs and the projected amount of the charges that will be payable by Buyer for the performance of such assistance. Upon Buyer’s authorization, Seller shall perform the assistance and invoice Buyer for such charges. Buyer shall pay Seller for authorized, additional charges incurred to provide such assistance accordance with Section 4.3 of the Master Agreement.
5.6. Survival of Selected Provisions.
(a) Survival. The following Sections of the Agreement shall survive the expiration or earlier termination of the Agreement or any Order: Section 4, Section 6, Section 9, Section 5.4 , Section 5.5, Section 5.6, Section 11, Section 12, Section 14 and Section 15. Upon termination or expiration of the Agreement, all rights and obligations of the Parties under the Agreement shall expire, except those rights and obligations under the Sections specifically designated to survive in this Section 5.6(a).
(b) Claims. Except as specifically set forth in the Agreement, all Claims by any Party accruing prior to the expiration or termination date shall survive the expiration or earlier termination of the Agreement.
6. COVENANTS; REPRESENTATIONS AND WARRANTIES
6.1. By Buyer.
(a) Organization; Power; Authorized Agreement; No Default. Buyer represents and warrants to Seller that, as of the Effective Date, Buyer: (i) is duly organized as a limited liability company in good standing under the laws of the District of Columbia; (ii) has full power to enter into and perform its obligations and exercise its rights under this Agreement; (iii) will comply with all applicable laws, rules, and regulations in connection with the performance of its obligations and exercise of its rights under this Agreement; (iv) will execute, duly authorize, and deliver the Master Agreement and each Order, which constitute or will constitute valid and binding agreements enforceable against Buyer in accordance with their terms; and (v) neither Buyer’s execution and delivery of the Master Agreement or any Order, nor the consummation of the transactions contemplated therein, will violate any agreement, law or obligation to which Buyer is a party or that is otherwise applicable to Buyer.
(b) No Solicitation. Buyer agrees that, during the Term and for a period of twelve (12) months immediately following the later to occur of the cessation of the Termination Assistance Services or the date of termination or expiration of the Agreement, Buyer will not knowingly employ, or engage on any other basis, or solicit the employment or other engagement of, any employee, contractor, consultant or customer of Seller; provided, however, that general advertisements of employment or engagement shall not be considered a violation of the foregoing covenant. This Section 6.1(b) is limited in scope to the geographic locations and industries in which Seller provides or has provided Products and/or Services for Buyer.
(c) No Litigation. To Buyer’s knowledge, there is no pending or threatened action, suit, proceeding or investigation that questions either the validity of the Agreement or Buyer’s right to enter into the Agreement or any Order hereunder.
6.2. By Seller.
(a) Organization; Power; Authorized Agreement; No Default. Seller represents and warrants to Buyer that, as of the Effective Date, Seller: (i) is duly organized, validly existing and in good standing under the business entity laws of the State of [______]; (ii) has full power to conduct its business as currently conducted and to enter into the Agreement; (iii) will comply with all applicable laws, rules, and regulations in connection with the provision of Products and/or Services; (iv) will execute, duly authorize, and deliver the Master Agreement and each Order, which constitute or will constitute valid and binding agreements enforceable against Seller in accordance with their terms; and (v) neither Seller’s execution and delivery of the Master Agreement or any Order, nor the consummation of the transactions contemplated therein, will violate any agreement, law or obligation to which Seller is a party or that is otherwise applicable to Seller.
(b) Services. Seller shall render Services using personnel that have the necessary knowledge, training, skills, experience, qualifications and resources to provide and perform the Services in accordance with the Agreement. Seller shall render Services in a prompt, professional, diligent, and workmanlike manner, consistent with industry standards applicable to the performance of such Services.
(c) Products. Seller shall provide Products that conform to the specifications or other description upon which any Order is based. Such Products shall: (i) be fit and sufficient for the purpose intended; (ii) be merchantable; (iii) consist of good materials and ingredients; and (iv) be made with workmanship consistent with industry standards. The Products provided by Seller shall also conform to any statements made on the containers or labels of or in advertisements for such Products.
(d) Services Not to be Withheld.
- (i) Prohibition. Seller will not voluntarily refuse to provide all or any portion of the Products and/or Services in violation or breach of the terms of the Agreement and/or any Order.
- (ii) Injunctive Relief. Seller acknowledges that its refusal to provide all or any of the Products and/or Services or its abandonment of the Agreement in violation of Section 5.7(d)(i) of this Agreement would cause irreparable harm, the amount of which would be impossible to estimate, thus making any remedy at law or in damages inadequate. Seller agrees that Buyer shall have the right to apply to any court of competent jurisdiction for and be granted an injunction compelling specific performance by Seller of its obligations under the Agreement and/or the applicable Order without the necessity of posting any bond. This right is in addition to any other remedy available to Buyer under the Agreement.
(e) Regulatory Approvals. Seller will timely obtain and maintain all necessary approvals, licenses and permits (required by law or otherwise) applicable to its business and the provision of the Products and/or Services.
(f) Food Products and/or Services. Seller agrees that it will comply with standards established by the U.S. Food and Drug Administration and parallel provisions established by the state in which the Seller is operating.
(g) No Solicitation. Seller agrees that, during the Term and for a period of one (1) year after the later to occur of the cessation of the Termination Assistance Services or the date of termination or expiration of the Agreement, Seller will not knowingly employ, or engage on any other basis, or solicit the employment or other engagement of, any employee, contractor, consultant or customer of Seller; provided, however, that general advertisements of employment or engagement shall not be considered a violation of the foregoing covenant. This Section 6.2(e) is limited in scope to the geographic locations and industries in which Seller provides or has provided Products and/or Services for Buyer.
(h) Data Return or Destruction. Promptly upon the expiration or earlier termination of any Order, or such earlier time as Buyer requests, Seller shall, and shall cause Seller’s subcontractors, representatives, agents and employees (collectively, “Seller’s Representatives”) to return to Buyer, or at Buyer’s request, destroy in every media, each and every original and copy of any Personally Identifiable Information in Seller’s or Seller’s Representative’s possession, custody or control. Promptly following any return or alternate action taken to comply with this subsection, Seller shall provide to Buyer a completed officer’s certificate certifying that such return or alternate action occurred. In the event applicable laws or regulations do not permit Seller or any Seller Representative to comply with the delivery or destruction of any Personally Identifiable Information, Seller warrants, and shall cause any such Seller Representative to warrant, that it shall ensure the confidentiality of the Personally Identifiable Information and that it shall not process any Personally Identifiable Information disclosed by or on behalf of Buyer after termination of the applicable Order.
(i) No Litigation. To Seller’s knowledge, there is no pending or threatened action, suit, proceeding or investigation, that questions either the validity of the Agreement or Seller’s right to enter into the Agreement or any Order or to provide any of the Products and/or Services.
6.3. Pass-Through Warranties. In the event Seller purchases or obtains any third party products or services for Buyer in connection with the provision of the Products and/or Services hereunder, in addition to the foregoing representations, warranties and covenants, Seller shall pass through or assign to Buyer the rights Seller obtains from the manufacturers and/or vendors of such products and services (including warranty and indemnification rights) to the extent that such rights are assignable. To the extent that such rights are not assignable by Seller, Seller agrees that Buyer may assert or enforce any right Seller may have to enforce such representations, warranties and covenants. If such rights can only be enforced by Seller under its own name, then upon written request by Buyer, Seller shall take all reasonable action Buyer requests to enforce such representations, warranties and covenants.
6.4. Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY ORDER, THE PARTIES MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE OF ANY SERVICE, SOFTWARE, HARDWARE, DELIVERABLES, WORK PRODUCT OR OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT. BUYER EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH THE DISTRIBUTION, TREATMENT AND OTHER HANDLING OF FOOD PRODUCTS RELATED TO THE PRODUCTS AND SERVICES PROVIDED UNDER THIS MASTER AGREEMENT.
7. ASSIGNMENT AND SUBCONTRACTING.
7.1. Generally. Neither this Agreement nor any interest herein may be assigned or subcontracted by Seller without Buyer’s prior written consent.
7.2. Use of Subcontractors.
(a) Seller’s Agreements with Subcontractors. Prior to subcontracting any of its obligations under the Agreement, Seller shall obtain contractual assurances from each subcontractor sufficient to enable Seller to comply with the provisions of the Agreement. In addition, each subcontract hereunder shall contain provisions specifying that Seller’s subcontractor specifically agrees that Seller shall have the right to assign such subcontract to Buyer. All such contractual assurances and agreements must include either: (i) a prohibition on further subcontracting; or (ii) an obligation to obtain similar contractual assurances from any sub-subcontractor.
(b) Seller’s Responsibility. Seller shall remain primarily liable and obligated to Buyer for the timely and proper performance of all of its obligations hereunder, even if such obligations are delegated to a subcontractor that has been approved by Buyer, and for the proper and timely performance and actions of any person or entity to which it delegates or subcontracts any such obligation. Seller will be responsible for payment to all Seller subcontractors.
8. COMPLIANCE WITH BUYER POLICIES. Buyer will, from time to time, provide to Seller a Quality Assurance Policy and other policies it deems necessary (collectively, “Buyer Policies”). Seller hereby acknowledges that it has received the Buyer Policies and agrees to be bound by the Buyer Policies throughout the Term of this Agreement.
9. CONFIDENTIALITY AND DATA.
9.1 Confidential Information.
(a) Obligations. Subject to Section 9.2 of this Agreement, each Party shall treat as confidential: (i) the terms and conditions of this Agreement (excluding the existence of this Agreement); (ii) all confidential or proprietary information, data and materials the receiving Party may receive from the disclosing Party or be given access to by the disclosing Party; and (iii) Personally Identifiable Information of individuals and any information that may be used to track, locate or identify such individuals (including, without limitation, names, addresses, credit card numbers, account numbers, specific items ordered, and denominations and quantities ordered by customers and aggregate customer and/or product information, if any individual person can be identified from such information) that is generated by or disclosed to Seller or Seller’s Representatives in connection with the provision of the Products and/or Services, including such information of Buyer’s employees and of individuals who seek to obtain, obtain, or have obtained products or services from Buyer and/or who have been solicited by or on behalf of Buyer (collectively, “Confidential Information”).
(b) Included Information. Confidential Information shall specifically include all Trade Secrets and other non-public information, materials, data, know-how, research, systems, plans and procedures of or relating to the disclosing Party, including maps, network routes, methodologies, specifications, locations, business plans and strategies, pricing and other financial information, marketing plans, lists of existing and prospective suppliers and customers, contractual arrangements, employee information, and proprietary technologies and processes, Software programs, systems, source code, specifications, inventions, designs, developments, and databases, together with compliance reports, auditor’s reports, and related work papers and records.
(c) Excluded Information. Notwithstanding the foregoing, Confidential Information will not include any information, data or materials that: (i) the receiving Party can demonstrate was lawfully received from another source with the right to furnish such information, without restriction or subject to restrictions to which it has conformed; (ii) is or becomes generally available to the public other than as a result of the unauthorized direct or indirect acts of the receiving Party; (iii) the receiving Party can demonstrate was, at the time of disclosure to it, rightfully known to it free of restriction; or (iv) is independently developed by a Party without the use of or referral to any other Party’s Confidential Information.
9.2. Non-Disclosure. Except as otherwise expressly provided in this Agreement, the receiving Party shall not, and shall not permit any other person or entity to: (a) use Confidential Information for any purpose other than the performance of the receiving Party’s obligations or exercise of its rights under this Agreement; or (b) divulge such Confidential Information, without the disclosing Party’s prior written consent, except to those employees and independent contractors who have a need to know such Confidential Information for purposes of carrying out the receiving Party’s obligations or exercising the receiving Party’s rights under this Agreement. The receiving Party shall be responsible for all acts or omissions of its employees and contractors in respect of access to or use of the Confidential Information. Notwithstanding the foregoing, in the event disclosure of Confidential Information is mandated or requested by applicable laws or by an order of a court or any regulatory, governmental or law enforcement agency or other authority, each of competent jurisdiction, then: (a) if not prohibited by a regulatory, law enforcement or other governmental authority or an order of a court of competent jurisdiction, the receiving Party shall promptly notify the disclosing Party of such requirement; (b) if so requested by disclosing Party, the receiving Party shall use good faith efforts, in consultation with the disclosing Party, to secure confidential treatment of the Confidential Information to be disclosed; and (c) the receiving Party shall furnish only that portion of the Confidential Information that it is legally required to disclose.
9.3. Buyer Data. As between Buyer and Seller, all data, information and other content furnished, used, generated, uploaded, stored and/or transmitted by Buyer to Seller in connection with the performance of this Agreement, including, but not limited to, Buyer’s name, identity and logos (collectively, the “Buyer Data”), is the exclusive property of Buyer. Such information and data shall not be disclosed to others nor used for any purpose other than in accordance with this Agreement without the prior written consent of Buyer.
9.4. Security; Security Breach.
(a) Safeguards. Seller shall use appropriate or reasonable legal, organizational, physical, administrative and technical measures and security procedures to safeguard and ensure the security of the Buyer Data and to protect Buyer Data from unauthorized access, disclosure, duplication, use, modification or loss. In implementing such measures and procedures, Seller will use at least the same level of care (including both physical security and electronic security) to prevent unauthorized access by, storage, disclosure, publication, dissemination to and/or use by Third Parties of, Buyer Data, as it employs, and Buyer employs, to avoid unauthorized access, storage, disclosure, publication, dissemination or use of their own information of a similar nature, but in no event less than a reasonable standard of care. The concept of a “reasonable standard of care” as used herein shall include compliance by Seller with all privacy laws applicable to the security (physical security and electronic access and data security), access, storage, disclosure, publication, dissemination and use of Confidential Information in Seller’s possession, as well as all privacy laws applicable to the security (physical security and electronic access and data security), access, storage, disclosure, publication, dissemination and use of Confidential Information in Buyer’s possession.
(b) Security Assessment. Without limiting the generality of the foregoing, Seller’s information security policies shall provide for: (i) regular assessment and re-assessment of the risks to the security of Buyer Data and systems acquired or maintained by Seller and/or Seller representatives; and (ii) protection against such risks.
(c) Media. Seller shall remove all Buyer Data from any media taken out of service and shall destroy or securely erase such media in a manner designed to protect against unauthorized access to or use of any Buyer Data in connection with such destruction or erasure.
(d) Security Breach. If Seller becomes aware of a Security Breach, Seller shall, as expeditiously as possible (considering the circumstances), notify Buyer of such Security Breach, specifying the extent to which Personally Identifiable Information was or is reasonably believed to have been compromised or disclosed. In addition, with respect to any Security Breach resulting from acts or omissions of Seller or any Seller Representative other than in accordance with the terms of the Agreement, Seller shall, at its own expense, take prompt, commercially reasonable steps to end the breach and restore security. Buyer shall make the final decision on notifying Buyer’s customers, employees, service providers and/or the general public of such Security Breach, and the implementation of the remediation plan. If a notification to a customer is required under any law or pursuant to any of Buyer’s privacy or security policies, then notifications to all customers who are affected by the same event (as reasonably determined by Buyer) shall be considered legally required. Seller shall reimburse Buyer on demand for all reasonable Notification Related Costs incurred by Buyer arising out of or in connection with any such Security Breach resulting in a requirement for legally required notifications (as determined in accordance with the previous sentence). With respect to any Security Breach that is not due to acts or omissions of Seller or any Seller Representative other than in accordance with the terms of the Agreement, the Parties shall reasonably cooperate regarding which of the foregoing or other activities may be appropriate under the circumstances, including any applicable Charges for the same.
9.5. Data Privacy. Buyer shall be and remain the controller of the Buyer Data and other Buyer Company Information for purposes of all applicable laws relating to data privacy, personal data, trans-border data flow and data protection, with the right to determine the purposes for which the Buyer Data and other information is processed. Nothing in the Agreement will restrict or limit in any way Buyer’s rights or obligations as owner and/or controller of its data and information for such purposes. As the controller of such data and other Buyer information, Buyer will direct Seller’s use of and access to the Buyer Data and other information, which shall be solely in accordance with the terms of the Agreement.
9.6. Limitation. The covenants of confidentiality and other restrictive covenants set forth herein: (a) will apply after the Effective Date to any Company Information disclosed to the receiving Party before and after the Effective Date; and (b) will continue and must be maintained from the Effective Date through the termination of the Products and/or Services, and (i) with respect to Trade Secrets, until such Trade Secrets no longer qualify as Trade Secrets under applicable law, (ii) with respect to Confidential Information, in perpetuity or as long as required by applicable law, and (iii) with respect to Buyer Data, in perpetuity.
10. INTELLECTUAL PROPERTY RIGHTS
10.1. Ownership of Work Product.
(a) Work for Hire. Seller agrees to disclose and promptly furnish to Buyer any and all technical information, computer or other specifications, documentation, works of authorship or other creative works, ideas, knowledge, or data, written, oral or otherwise expressed, originated by Seller or by one or more of the Seller Representatives as a result of work performed under or in anticipation of the Agreement (“Work Product”). Buyer shall own all right, title and interest in and to the Work Product created hereunder, including all Intellectual Property Rights therein. Seller expressly acknowledges that the Parties have agreed that all aspects of the Work Product and all work in process in connection therewith are to be considered “works made for hire” within the meaning of the United States Copyright Act of 1976, as amended (the “Act”), and that Buyer is to be the “author” within the meaning of the Act. All such copyrightable Work Product, as well as all copies of such Work Product in whatever medium fixed or embodied, shall be owned exclusively by Buyer at its creation, and Seller hereby expressly disclaims any interest in such Work Product or copies. Buyer hereby grants to Seller a fully paid-up, non-exclusive license to use, display, copy and make Derivative Works of the Work Product solely for the purpose of providing the Products and/or Services to Buyer under the Agreement.
(b) Assignment of Rights. In the event (and to the extent) that any Intellectual Property Rights in the Work Product created by Seller and/or Seller Representatives hereunder vest in Seller or any Seller Representative, or any Work Product, or part or element thereof is found as a matter of law not to be a “work made for hire” within the meaning of the Act, Seller hereby irrevocably conveys and assigns (and in the case of Work Product not yet developed, hereby covenants upon their development to irrevocably convey and assign) to Buyer the sole and exclusive right, title and interest in and to all such Work Product, including all Intellectual Property Rights therein, and all copies of any of them, without further consideration, and agrees to assist Buyer with registering, and from time to time enforcing, all Intellectual Property Rights and other rights and protections relating to the Work Product created hereunder in any and all countries. Seller acknowledges, and will cause all Seller Representatives to acknowledge, that Buyer will have the right to obtain and hold in its own name the Intellectual Property Rights in and to the Work Product. Seller shall place proprietary rights notices in favor of Buyer on the Work Product at Buyer’s request.
10.2. Pre-existing Materials. Seller shall obtain Buyer’s written consent prior to incorporating any inventions or materials previously made, developed or copyrighted by Seller or others and not originated or developed hereunder (“Pre-existing Materials”) in any Work Product. If the Work Product includes or requires the use of Pre-existing Materials, then Seller agrees to grant to Buyer a perpetual, irrevocable, worldwide, non-exclusive and royalty-free license, with the right to sublicense, make, use, sell, have made, copy, modify, distribute, display and perform the inventions, information or other aspects of the Pre-existing Materials, but only to the extent necessary to exploit the Work Product originated or developed under or in anticipation of the Agreement.
10.3. Use of Buyer Marks; No Other Rights. The trademarks, trade names and logos under which Buyer markets its goods or services, together with Buyer’s and its Affiliates’ copyrights and know-how (collectively, “Buyer Marks”) are the sole and exclusive property of Buyer. Seller acknowledges and agrees that it does not have, and by reason of the Agreement will not acquire, any license, property right or other right to use the Buyer Marks. Seller agrees to obtain Buyer’s approval before any and all uses by Seller of the Buyer Marks. In addition, Seller shall comply with Buyer’s applicable quality control standards regarding any use of the Buyer Marks. Except as expressly set forth herein with respect to Work Product or any Buyer Software (and subject to any required consents), Seller further acknowledges and agrees that it does not have, and by reason of the Agreement will not acquire, any license, property right or other right to use any of Buyer’s intellectual property, including any patents that may be held by Buyer. Buyer grants Seller no right in any such patents.
10.4. Knowledge Capital. The Parties agree that Seller personnel providing Products and/or Services on behalf of Buyer hereunder shall be permitted to use, but not disclose to any Third Party, their knowledge and skills based upon Residuals. For these purposes, “Residuals” shall mean such general knowledge, know-how and experience, including processes, methods, techniques and concepts developed, conceived or acquired by Seller personnel in connection with the Products and/or Services as may be retained in the unaided memory of such personnel, but shall not: (a) include any circumstances whereby such person has intentionally memorized the information, idea, concept, methodology, process, know-how or technique for the purpose of using or disclosing it or for retaining and subsequently using or disclosing it; (b) include or reference Company Information or Intellectual Property Rights of Buyer or a Third Party in a manner that would violate any of the terms of the Agreement; (c) limit or otherwise modify Seller’s confidentiality obligations contained herein; or (d) include any ideas, concepts, methodologies, processes, know-how or techniques to the extent such ideas, concepts, methodologies, processes, know-how or techniques, are part(s) of any product or service Buyer offers. Seller personnel’s ability to use Residuals as permitted herein shall not abrogate and is subject to any and all other provisions of the Agreement that would prohibit the provision of services to any Third Party or other activities of Seller personnel.
11.1. Liability Caps.
(a) Seller Cap. Except as provided in Section 11.2, the liability of Seller to Buyer arising out of or resulting from the performance or non-performance by Seller and the Seller Representatives of the Products and/or Services and Seller’s obligations under the Agreement shall be limited to Direct Damages incurred by Buyer for each event that is the subject matter of a Claim or cause of action. Except as provided in Section 11.2, each Order shall contain a provision setting the cap on Seller’s aggregate liability for Direct Damages pursuant to such Order (the “Seller Direct Damages Cap”). The sum of the Seller Direct Damages Caps set forth in the Orders shall constitute Seller’s aggregate liability for Direct Damages under the Agreement (the “Seller Aggregate Direct Damages Cap”).
(b) Buyer Cap. Except as provided in Section 11.2, the liability of Buyer to Seller arising out of or resulting from the performance and non-performance of Buyer’s obligations under the Agreement (including the Orders) shall be limited to Direct Damages incurred by Seller for each event that is the subject matter of a Claim or cause of action. Except as provided in Section 11.2, Buyer’s aggregate liability for Direct Damages under each Order shall not exceed one point five (1.5) times the total Charges payable to Seller with respect to the specific Products and/or Services giving rise to such liability and set forth in the applicable Order during the first year of the Order Term (the “Buyer Direct Damages Cap”). The sum of the Buyer Direct Damage Caps set forth in the Orders shall constitute Buyer’s aggregate liability for Direct Damages under the Agreement (the “Buyer Aggregate Direct Damages Cap”).
(c) Excluded Damages. Neither Party shall be liable for damages that constitute: (i) loss of interest, profit or revenue of the claiming Party; or (ii) incidental, consequential, punitive, multiple or indirect damages suffered by the claiming Party, except as the damages described in (i) and (ii) are included as a part of the Termination Charges, the Service Level Credits, Direct Damages, or as otherwise specifically provided for in the Agreement, even if such Party has been advised of the possibility of such losses or damages.
11.2. Exclusions. The limitations on the types and amounts of damages set forth in Section 11.1 and Section 11.3 shall not apply to, and amounts or payments made to satisfy damages, losses and other amounts described in this Section 11.2 shall not be included in calculating the Seller Direct Damages Cap or the Buyer Direct Damages Cap: (a) Buyer’s failure to pay charges for the Products and/or Services that are due and payable under the Order up to the effective date of the termination of such Orders; (b) losses covered under the Party’s indemnification obligations pursuant to Section 5; (c) losses arising from a violation of the provisions of Section 10; (d) losses incurred by Buyer caused by or arising out of the willful misconduct or gross negligence of Seller or any Seller Representative in the performance or failure of performance of its obligations under the Agreement or theft or fraud by Seller or any Seller Representative; (e) amounts payable and credits owed to Buyer by Seller under the Agreement, including Service Level Credits; (f) losses arising from a breach by Seller of Section 6.2; (g) losses arising from a breach by Seller of Section 6 and Section 8; (h) losses arising from a breach by Seller of Section 5.5; (i) losses arising from damage to tangible personal or real property of Buyer caused by acts or omissions of Seller or any Seller Representative; and (j) amounts recoverable pursuant to Section 4.8.
11.3. Direct Damages. Unless specifically provided to the contrary in the Agreement (including Section 11.2), neither Party shall have any liability, whether based on contract, tort (including negligence), warranty, guarantee or any other legal or equitable grounds, to the other Party for any damages other than Direct Damages. “Direct Damages” means actual, direct damages incurred by the claiming Party.
(a) At its option, Buyer may, subject to the limitations and provisions specified in this Section 11: (i) seek all remedies available to it under law and in equity, including actions for damages and/or injunctive relief in the form of specific performance to enforce the Agreement; or (ii) recover the Service Level Credits.
(b) Seller may seek monetary damages resulting from Buyer’s breach of its obligations under the Agreement, but Seller irrevocably agrees not to initiate any proceedings or file any action or suit in any court of competent jurisdiction or before any judicial or other authority arising under, out of, in connection with or relating to the Agreement against Buyer or its officers, directors, employees or agents in which it seeks equitable remedies of any nature, including specific performance or injunction, except in connection with the alleged violation by such persons of the confidentiality provisions of the Agreement or alleged infringement of Seller’s Intellectual Property Rights.
12.1. Indemnity by Seller. Seller will indemnify and hold harmless Buyer, its Affiliates, and the respective current, future and former officers, directors, employees, agents, successors and assigns of each of the foregoing (collectively, the “Buyer Indemnitees”) on demand from and against any and all losses incurred by any of them, and shall defend the Buyer Indemnitees against all Claims arising from or in connection with:
(a) all Claims that any Seller Assets, Work Product, Seller Software, Products, Services or any other item, information, system, deliverable, Software or service provided or used under the Agreement by Seller (or any Seller Representative), or Buyer’s use thereof (or access or other rights thereto) in connection with the Products and/or Services, infringes or misappropriates the Intellectual Property Rights of a Third Party; provided, however, Seller shall have no liability or obligation to any of the Buyer Indemnitees under this Section 12.1(a) to the extent that the Claim of infringement or misappropriation is caused solely by such Buyer Indemnitee’s: (i) unauthorized modification of such item; or (ii) use of such item in combination with any product or equipment not owned, developed, contemplated or authorized by Seller, except where Seller knew or reasonably should have known that such combination would be used by Buyer or such Buyer Indemnitee and did not object. If any Service, deliverable or item provided by Seller hereunder is held to constitute, or in Seller’s reasonable judgment is likely to constitute, an infringement or misappropriation, Seller will, in addition to its indemnity obligations, at its expense and option, and after consultation with Buyer regarding Buyer’s preference in such event, either: (i) procure the right for Buyer Indemnitees to continue using such Product and/or Service, deliverable or item; (ii) replace such Product and/or Service, deliverable or item with a non-infringing equivalent, provided that such replacement does not result in a degradation of the functionality, performance or quality of the deliverable or item; (iii) modify such Product and/or Service, deliverable or item, or have such Product and/or Service, deliverable or item modified, to make it non-infringing, provided that such modification does not result in a degradation of the functionality, performance or quality of the Product and/or Service, deliverable or item; or (iv) create a feasible workaround that would not have any adverse impact on Buyer;
(b) all Claims by employees of Seller or any of its Affiliates or subcontractors arising out of or relating to the Agreement or the Products and/or Services, except to the extent caused by the gross negligence or willful misconduct of Buyer or any of its Affiliates or subcontractors (but excluding Seller and the Seller Representatives from such exception);
(c) all Claims arising out of, resulting from or related to any act or omission of Seller in its capacity as an employer of an individual and arising out of or relating to: (i) federal, state or other laws or regulations for the protection of individuals who are members of a protected class or category of individuals; (ii) sexual discrimination or harassment; and (iii) any other aspect of the employment relationship or its termination (including Claims for breach of an express or implied contract of employment) that arose when the individual asserting the Claim, demand, charge, actions, cause of action or other proceeding was or purported to be an employee of, or candidate for employment by, Seller;
(d) all Claims related to damage to tangible or intangible personal or real property resulting from, arising out of or related to the acts of Seller or any Seller Representatives that are outside of their provision of the Products and/or Services while present on Buyer’s Facilities;
(e) all Claims for personal injuries, death or damage to tangible or intangible personal or real property, including Claims of any employee of Buyer or any Buyer Representative, to the extent caused by acts or omissions of Seller or any Seller Representatives;
(f) all Claims arising from a violation of any law applicable to Seller and/or any Seller Representative or to Buyer, by Seller or any Seller Representative;
(g) all Claims arising from fraud or theft committed by, or the willful misconduct of, Seller or any Seller Representative;
(h) all Claims for Seller’s Tax liabilities arising from Seller’s provision of Products and/or Services as set forth in Section 4.7 of this Agreement;
(i) all Claims arising out of the failure of Seller to obtain, or cause to be obtained, any consent or approval required for Buyer, its customers and the Buyer Representatives to receive and use the Products and/or Services, or any component thereof, to the full extent provided in the Agreement;
(j) all Claims arising out of Seller’s breach of its obligations under Section 6.2 or Section 5.5 of the Agreement;
(k) all Claims that any personnel supplied by Seller, its Affiliates and/or their permitted subcontractors under the Agreement is an employee or agent of Buyer, including: (i) the cost of any employee benefits Buyer is required to provide to or pay for on behalf of any personnel supplied by Seller, its Affiliates and/or their permitted subcontractors; and (ii) any Claim brought by any personnel supplied by Seller, its Affiliates and/or permitted subcontractors against any Buyer Indemnitee based upon the employer-employee relationship;
(l) any Claims arising out of Seller’s breach of its representations or warranties set forth in the Agreement, except pursuant to Section 6.2(d) of this Agreement;
(m) all Claims arising out of or in connection with: (i) Seller’s breach of its obligations under Section 9.1, 9.3 or 9.7; or (ii) any Security Breach (including all Notification Related Costs) arising due to Seller’s acts or omissions other than in accordance with the terms of the Agreement;
(n) all Claims arising out of Seller’s use in performing and/or providing the Products and/or Services to Buyer of products, services or license rights under the Third Party Agreements (including any Buyer Software licensed by Buyer from a Third Party), to the extent due to Seller’s or any of its Affiliates’ or subcontractors’ breach of the Third Party Agreement(s) regarding products, services or license rights (including a Third Party’s license agreement for Buyer Software); and
(o) all Claims by, or increases in the charges payable to, the Third Party Providers under the Third Party Agreements caused by or arising out of any breach of the Agreement by Seller or its Affiliates or subcontractors, or failure to properly and timely perform any duty or responsibility that Seller or any of its Affiliates or subcontractors has under the Agreement, except to the extent caused by any breach of the Agreement by Buyer or its Affiliates or contractors (but excluding Seller and its Affiliates and subcontractors from such exception).
12.2. Indemnity by Buyer. Buyer will indemnify and hold harmless Seller and its Affiliates, and the respective current, future and former officers, directors, employees, agents, successors and assigns of each of the foregoing (collectively, the “Seller Indemnitees”) on demand, from and against any and all losses incurred by any of them and shall defend the Seller Indemnitees against all Claims arising from or in connection with:
(a) all Claims that any Buyer Software, or Seller’s use thereof in accordance with the terms of the Agreement, infringes or misappropriates the Intellectual Property Rights of a Third Party; provided, however, Buyer shall have no liability or obligation to any of the Seller Indemnitees under this Section 12.2(a) to the extent that the Claim of infringement or misappropriation is caused solely by: (i) such Seller Indemnitee’s unauthorized use or modification of such item; or (ii) such Seller Indemnitee’s use of such item in combination with any product or equipment not owned, developed, contemplated or authorized by Buyer, except where Buyer knew or reasonably should have known that such combination would be used by Seller or such Seller Indemnitee and did not object;
(b) all Claims arising from fraud committed by, or the willful misconduct of, Buyer or its employees; and
(c) all Claims for Buyer’s Tax liabilities, if any, as set forth in Section 4.7 of this Agreement.
12.3. Indemnification Procedures. An indemnified party under this Section 12 shall promptly notify the indemnifying party of any Claim for which it seeks indemnity under this Section 12. An indemnifying party may participate, at its own expense, in the defense of the Claim. If it so elects within a reasonable time after receipt of such notice, an indemnifying party may, except as provided in the immediately following sentence and the last sentence of this paragraph, assume the defense of such Claim, with counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, and the fees and expense of such counsel shall be at the expense of the indemnified party unless: (a) the indemnifying party and the indemnified party mutually agreed to the retention of such counsel; or (b) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying party shall not, with respect to the legal expense of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding with respect to which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party if: (a) such settlement involves any form of relief other than the payment of money or any finding or admission of any violation of any law or any of the rights of any person or has any adverse effect on any other Claims that have been or may be made against the indemnified party; or (b) such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified party of all liability on all Claims that are the subject of such proceeding. An indemnified party may assume control of the defense of any Claim if: (a) it irrevocably waives its right to indemnity under this Section 12; or (b) without prejudice to its full right to indemnity under this Section 12: (i) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend or provide indemnification with respect to such Claim, (ii) the indemnified party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying party under the Agreement, or (iii) the indemnifying party refuses or fails to timely assume the defense of such Claim.
13. INSURANCE AND RISK OF LOSS
13.1. Seller Insurance.
(a) During each applicable Order Term, Seller and each Seller subcontractor that provides any of the Products and/or Services shall maintain and keep in force, at its own expense and without limiting its indemnity obligations as set forth in Section 12.1 of the Agreement, insurance of the types and at or above the minimum amount specified in the Order.
(b) Seller shall deliver, and shall cause its subcontractors providing any portion of the Products and/or Services under the Agreement to deliver, certificates of insurance verifying such coverage, in a form acceptable to Buyer, prior to the Commencement Date. Following the Commencement Date, Seller shall provide, and shall cause each of its subcontractors providing any portion of the Products and/or Services under the Agreement to provide, certificates of insurance verifying such coverage to Buyer on an annual basis and as may otherwise be requested by Buyer. Seller agrees to provide, and shall cause each of its subcontractors providing any portion of the Products and/or Services under the Agreement to provide, in a form acceptable to Buyer, renewals of such certificates of insurance upon receipt of such renewals. Receipt and/or acceptance by Buyer of any certificate of insurance that does not satisfy the coverage criteria set forth in this Section 13.1, shall not operate as a waiver of Seller’s or Seller’s subcontractors’ obligations hereunder. Seller shall provide Buyer with written notice within thirty (30) days in the event it learns that its coverage has substantially changed, not been renewed, or been canceled.
(c) The required insurance shall be provided by insurance companies of recognized standing that are authorized to do business in the jurisdictions where operations are to be performed and have a minimum A.M. Best Rating of [insert minimum rating]. All such policies of insurance of Seller and its subcontractors shall provide that the insurance policy shall not be canceled nor materially modified without first giving thirty (30) days’ written notice to Buyer. No cancellation or material modification shall affect Seller’s obligation to maintain the insurance coverage required by the Agreement. Seller and any subcontractors providing any portion of the Products and/or Services under the Agreement shall name Buyer as an additional insured on all policies specified in the “Insurance” Schedule to each Order, with the exception of workers’ compensation insurance policies, if any.
(d) All liability insurance policies shall be written on an “occurrence” policy form, unless otherwise agreed in writing. Buyer shall be named as loss payee as its interest may appear on any property insurance policies of Seller. Seller shall be responsible for payment of any and all deductibles, self-insured retentions, and self-insurance carried by Seller under its insurance program(s). The coverage afforded under any insurance policy obtained by Seller pursuant to the Agreement shall be primary with respect to Seller’s acts or omissions and not be in excess of, or contributing with, any insurance maintained by Buyer and its assigns. Seller and its subcontractors shall not perform under the Agreement without the prerequisite insurance. Unless previously agreed to in writing by Buyer, Seller and its subcontractors shall comply with the insurance requirements herein, and Seller agrees to be solely responsible for any deficiencies in the coverage, policy limits and endorsements of its subcontractors providing any portion of the Products and/or Services under the Agreement. If Seller or its subcontractors fail to comply with any of the insurance requirements herein, upon written notice to Seller by Buyer and a ten (10) day cure period, Buyer shall have the right, but not the obligation, to provide or maintain any such insurance, and to deduct the cost thereof, plus a reasonable administrative fee as designated by Buyer, from any amounts due and payable to Seller under the Agreement, or, in the event there are no such amounts due and payable, Seller shall reimburse Buyer for such costs on demand.
(e) Umbrella or excess liability insurance may be used to satisfy the minimum limits of coverage specified in the “Insurance” Schedule to each Order, provided that such insurance follows the form of the primary coverage specified in the “Insurance” Schedule to each Order, exceeds the underlying policy without gaps in coverage and provides coverage as broad as the underlying insurance coverage.
(f) The Parties do not intend to shift all risk of loss to available insurance coverage. The naming of Buyer as additional insured is not intended to be a limitation of Seller’s liability and shall in no event be deemed to, or serve to, limit Seller’s liability to Buyer to available insurance coverage or to the policy limits specified in the “Insurance” Schedule to each Order, nor to limit Buyer’s rights to exercise any and all remedies available to Buyer under contract, at law or in equity.
13.2. Risk of Property Loss. Seller and Buyer each shall be responsible for damages to their respective tangible personal or real property (whether owned or leased), and each Party agrees to look only to their own insuring arrangements (if any) with respect to such damages; provided, however, that Seller shall be responsible for damages to tangible property of Buyer under the custody and control of Seller or any Seller Representative.
13.3. Contravention of Insurance. Seller will not intentionally do anything or permit anything to be done on, in or to the Products and/or Services that will affect, impair or contravene any policies of insurance that may be carried on the operations or any part thereof, or the use thereof, against loss, damage or destruction by fire, casualty, public liability, or otherwise.
13.4. Waiver of Subrogation. To the fullest extent permitted by applicable law, Seller agrees to look solely to its insurers, and hereby releases and waives any and all rights it has now, or may have in the future, to recover against Buyer, or any of its respective trustees, beneficiaries, general or limited partners, directors, officers, agents, servants, subsidiaries, affiliates or employees (collectively, the “Releasees”) for loss or damage to personal property, and for Claims of injury to, or death of, employees of Seller in any way relating to or resulting from the provision of the Products and/or Services, including Claims for contribution, indemnity or reimbursement of worker’s compensation benefits. Seller hereby agrees that its insurers (and the insurers of any Seller subcontractors) shall waive all rights of subrogation with respect to Claims against the Releasees arising out of the Products and/or Services. Buyer does not assume any liability of any nature or kind for bodily injuries or property damages, or any other damages, arising out of Seller’s provision of the Products and/or Services.
14. DISPUTE RESOLUTION.
14.1. Disputes in General. The Parties will resolve all Disputes in accordance with discussed and agreed upon procedures.
14.2. Continued Performance. Except where prevented from doing so by the matter in Dispute, Seller agrees to continue performing its obligations under the Agreement while any Dispute is being resolved unless and until such obligations are terminated by the termination or expiration of the Agreement.
14.3. Exceptions to Dispute Resolution Procedures. Notwithstanding any other provision of the Agreement, either Party may resort to court action for injunctive relief at any time if, in the Party’s good faith belief, the Dispute Resolution Procedures would permit or cause irreparable injury to the Party or any Third Party claiming against the Party due to delay arising of the Dispute Resolution Procedures.
14.4. Governing Law. All rights and obligations of the Parties relating to the Agreement shall be governed by and construed in accordance with the laws of the District of Columbia without giving effect to any choice of law provision or rule (whether of the District of Columbia or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Each Party shall bring any suit, action or other proceeding with respect to the Agreement in a federal district court located in the District of Columbia unless the jurisdiction of such courts is improper, in which event a Party may bring such suit, action or other proceeding in any court of competent jurisdiction in the District of Columbia. Seller consents to the exclusive jurisdiction of any state or federal court empowered to enforce the Agreement located in the District of Columbia, and waives any objection thereto on the basis of personal jurisdiction or venue. The Parties waive their respective rights to trial by jury of any cause of action, Claim, counterclaim or cross-complaint in any action, proceeding and/or hearing brought by either Party against the other on any matter whatsoever arising out of, or in any way connected with, the Agreement.
15.1. Relationship of Parties.
(a) No Joint Venture. The Agreement (including the Orders) shall not be construed as constituting either Party as partner, joint venture or fiduciary of the other Party or to create any other form of legal association that would impose liability upon one Party for the act or failure to act of the other Party, or as providing either Party with the right, power or authority (express or implied) to create any duty or obligation of the other Party.
(b) Publicity. Each Party will submit to the other Party all advertising, written sales promotions, press releases and other publicity matters relating to the Agreement in which the other Party’s name or marks are mentioned or language from which the connection of such name or marks may be inferred or implied, and will not publish or use such advertising, sales promotions, press releases, or publicity matters without prior written approval of the other Party.
15.2. Entire Agreement; Updates, Amendments, and Modifications. The Agreement (including all of the Orders) constitutes the entire agreement of the Parties with regard to the Products and/or Services and matters addressed therein, and all prior agreements, letters, proposals, discussions and other documents regarding the Products and/or Services and the matters addressed in the Agreement (including the Orders) are superseded and merged into the Agreement (including the Orders). Updates, amendments, corrections and modifications to the Agreement (including the Orders) shall only be made by a written document signed by both Parties. Any terms and conditions varying from the Agreement (including the Orders) on any order or written notification from either Party shall not be effective or binding on the other Party.
15.3. Force Majeure.
(a) Generally. Each Party will be excused from performance under this Agreement for any period and to the extent that it is prevented from or delayed in performing any obligations pursuant to the Agreement, in whole or in part, as a result of a Force Majeure Event. If either Party is prevented from, or delayed in performing any of its obligations under the Agreement by a Force Majeure Event, it shall promptly notify the other Party verbally (to be confirmed in writing within twenty-four (24) hours of the inception of the delay) of the occurrence of a Force Majeure Event and describe, in reasonable detail, the circumstances constituting the Force Majeure Event and of the obligations, the performance of which are thereby delayed or prevented. The Party claiming that a Force Majeure Event has occurred shall continue to use commercially reasonable efforts to mitigate the impact or consequence of the event on the other Party and to recommence performance whenever and to whatever extent possible without delay. In the event of any Force Majeure Event, Buyer shall not pay any Charges in respect of the Products and/or Services so affected.
(b) Notwithstanding any other provision of this section, a Force Majeure Event shall obligate and require Seller to commence and successfully implement all of the Products and/or Services relating to the security requirements pursuant to Section 9.3 and to the disaster recovery requirements set forth in the Disaster Recovery Plan, and the non-performing Party shall not be excused under this Section 15.3 for: (i) any non-performance of its obligations under this Agreement having a greater scope or longer period than is justified by the Force Majeure Event; or (ii) the performance of obligations that should have been performed prior to the Force Majeure Event.
15.4. Waiver. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof.
15.5. Severability. If any provision of the Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby, and such provision shall be deemed to be restated to reflect the Parties’ original intentions as nearly as possible in accordance with applicable law(s).
15.6. Counterparts. The Master Agreement and each Order may be executed in counterparts. Each counterpart shall be an original and together shall constitute one and the same document. The Parties agree that an electronic signature or photographic or facsimile copy of the signature evidencing a Party’s execution of the Agreement shall be effective as an original signature and may be used in lieu of the original signature for any purpose.
15.7. Binding Nature and Assignment. This Agreement shall be binding on the Parties and their respective successors and permitted assigns. Except as provided in this Section 15.7, neither Party may, or have the power to, assign the Agreement (or any rights thereunder) by operation of law or otherwise without the prior written consent of the other, except that Buyer may assign its rights and delegate its duties and obligations under this Agreement: (a) to an Affiliate; or (b) as a whole as part of the sale or transfer of all or substantially all of its assets and business, including by merger or consolidation to an individual or entity that assumes the duty to and has the ability to perform Buyer’s duties and obligations under the Agreement, without the approval of Seller. Any attempted assignment that does not comply with the terms of this Section 15.7 shall be null and void.
(a) When a Party must provide notice to the other Party under this Agreement, such notice must be in writing, unless otherwise agreed by the Parties, and will be deemed given: (i) when delivered by hand; (ii) one (1) day after being given to an express courier with a reliable system for tracking delivery; or (iii) five (5) days after the date of mailing when mailed by United States mail (registered or certified mail, return receipt requested, postage prepaid). In addition to the foregoing notice requirement, whenever Seller is required to give notice to Buyer pursuant to Section 9.3(d) of the Master Agreement, such notice shall also be provided (as expeditiously as possible in accordance with the provisions of Section 9.3(d)) to Buyer’s CEO via both telephone and e-mail.
(b) Notifications will be addressed as follows:
Seller Officer or Contract Manager
with a copy to:
Kimberly Bryden, CEO
P.O. Box 96503 #89856
Washington, D.C. 20090
with a copy to:
Beverly J. Davis
Davis Law, PLLC611 Pennsylvania Ave, SE #224
Washington, DC 20003
and a copy to (for notices required pursuant to Section 9.3(d)):
[insert title from 9.3(d)]
[insert contact information]
Either Party may from time to time change its address for notification purposes by giving prior written notice to the other Party of the new address and the date upon which the change will become effective.
15.9. No Third Party Beneficiaries. The Parties do not intend, nor will any section hereof be interpreted, to create for any third party beneficiary rights with respect to either of the Parties, except each Buyer Affiliate shall be a third party beneficiary under the Agreement, and the Third Parties identified in Section 12 will have the rights and benefits described in that section.
15.10. Rules of Construction. Interpretation of this Agreement shall be governed by the following rules of construction: (a) words in the singular shall be held to include the plural and vice versa and words of one gender shall be held to include the other gender as the context requires; (b) the word “including” and words of similar import shall mean “including, without limitation;” (c) provisions shall apply, when appropriate, to successive events and transactions; (d) the headings contained herein are for reference purposes only and shall not affect the meaning or interpretation of this Agreement; and (e) this Agreement was drafted with the joint participation of both Parties and shall be construed neither against nor in favor of either, but rather in accordance with the fair meaning hereof. In the event of any apparent conflicts or inconsistencies between the provisions of the Master Agreement, the Exhibits, the Orders, the Schedules or other attachments to the Agreement and Orders, such provisions shall be interpreted so as to make them consistent to the extent possible, and if such is not possible, the provisions of Section 1.1(d) shall control.
15.11. Further Assurances. During the Term and at all times thereafter, each Party shall provide to the other Party, at its request, reasonable cooperation and assistance (including the execution and delivery of affidavits, declarations, oaths, assignments, samples, specimens and any other documentation) as necessary to effect the terms of the Agreement.
15.12. Exhibits. The following Exhibits are attached hereto and incorporated herein by reference:
Exhibit 1: Definitions
Exhibit 2: Form of Order
15.13. Expenses. Each Party shall be responsible for the costs and expenses associated with the preparation and completion of this Agreement and the transactions contemplated hereby, except as specifically set forth in this Agreement.