The following additional terms and conditions shall apply to each Work Order and the Services described therein.
1. Purpose and Structure of Agreement
(a) Buyer desires to enter into an agreement with Service Provider for the provision of the Products and/or Services to Buyer.
(b) Service Provider 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.
(c) The purposes and objectives of Buyer and Service Provider for entering into the Agreement include:
- Improving and streamlining the administrative and payment processes for companies that purchase products and/or services through Cureate Connect (the “Platform”);
- Improving and streamlining Buyer’s service and work order fulfillment processes by contracting with companies to 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”;
- Increasing scalability and flexibility of the Platform to meet the needs of Buyer Customers and Vendors;
- Continuing to lower the barriers to entry for Vendors that desire to do business with Buyer Customers; and
- Increasing exposure of Buyer Customers to Vendors’ products and services.
A. Service Provider is a business growth and economic development firm that is focused on the food and beverage supply system. To redirect income back into local communities, Service Provider created an online ecosystem through its technology platform, Cureate Connect (the “Platform”), that allows local food and beverage companies (collectively referred to as “vendors”) and entities that want to “buy local” (the “Buyers”) to connect and source and supply foodstuffs and beverages (collectively the “Goods”). Service Provider desires to contract with Buyer to introduce Buyer to Goods made by local vendors and to help Buyer purchase such Goods.
B. Buyer is an entity that wants to purchase Goods from local vendors through the Platform with Service Provider’s assistance.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the receipt and sufficiency of which is hereby acknowledged, the Parties agree to be bound by the terms and conditions of this Agreement.
3. Legal Compliance / Non-Union Agreement/ Form W-9
(a) Legal Compliance
The Parties will comply with all applicable federal, state, and local laws, including without limitation, obtaining and maintaining the necessary permits and approvals required to perform their respective obligations under this Agreement. Each Party will obtain any required inspections, authorizations and approvals prior to commencement of this Agreement.
(b) Non-Union Agreement
Service Provider’s services are rendered pursuant to this Agreement in a non-union capacity. Buyer acknowledges and agrees that this Agreement and the Services hereunder shall not be subject to the terms of any collective bargaining agreement. Buyer further acknowledges that Service Provider is not a signatory to any collective bargaining agreement.
(c) Form W-9
Service Provider’s obligations under this Agreement are expressly conditioned upon Buyer signing and returning the Agreement and an IRS form W-9 to Service Provider.
4. Representations and Warranties
(a) Buyer and Service Provider represent that they are free to enter into this Agreement and have the right, power, and authority to grant all of the rights herein. Service Provider does not warrant in any form the Goods or the results or achievements of the Services provided or the resulting work product and deliverables. Service Provider warrants that the Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with generally accepted industry standards and practices.
(b) LIMITATION OF WARRANTY. THE WARRANTY SET FORTH IN THIS SECTION 2 IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES, WORK PRODUCT, GOODS, OR OTHER DELIVERABLES PROVIDED UNDER THIS AGREEMENT, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. SERVICE PROVIDER DISCLAIMS ANY AND ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. SERVICE PROVIDER SHALL NOT BE LIABLE FOR ANY SERVICES, WORK PRODUCT, GOODS, OR OTHER DELIVERABLES PROVIDED BY THIRD-PARTY VENDORS DURING THE TERM OF THIS AGREEMENT, PURSUANT TO ANY PURCHASE ORDER OR OTHERWISE. BUYER’S EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY IS REPERFORMANCE OF THE SERVICES, OR IF REPERFORMANCE IS NOT POSSIBLE OR CONFORMING, REFUND OF AMOUNTS BUYER PAID UNDER THIS AGREEMENT FOR SUCH NON-CONFORMING GOODS OR SERVICES.
(a) Work Product
Service Provider hereby agrees that the Services performed under this Agreement are work made for hire specially ordered or commissioned by Buyer within the meaning and interpretation of the United States Copyright Act, as amended from time to time. Accordingly, except for the Service Provider IP, Buyer shall own the copyright in all deliverables
(b) Service Provider IP
Service Provider is the sole exclusive owner of all intellectual property rights in and to the Platform, Cureate Courses, Cureate Pro, Service Provider trademarks, service marks, patents, trade secrets, trade names, and all other pre-existing Service Provider works and derivative works of such pre-existing works (collectively, the “Service Provider IP”). Any developments to the Service Provider IP that are made, conceived, created, discovered, invented or reduced to practice during the performance of the Services hereunder are and shall forever remain the sole and absolute property of Service Provider. This Agreement does not grant Buyer any license to use any of the Service Provider IP.
6. Confidential Information
The Parties acknowledge that by reason of their relationship to one another hereunder, each may disclose or provide access (the “Disclosing Party”) to certain Confidential Information to the other Party (the “Receiving Party”). As used in this Section 4, “Receiving Party” refers to the person or entity receiving Confidential Information. “Confidential Information” shall mean (i) information concerning a Party’s products, business and operations including, but not limited to, information relating to business plans, financial records, customers, suppliers, vendors, products, product samples, costs, sources, strategies, inventions, procedures, sales aids or literature, technical advice or knowledge, contractual agreements, pricing, price lists, product white paper, product specifications, trade secrets, procedures, distribution methods, inventories, marketing strategies and interests, algorithms, data, designs, drawings, work sheets, blueprints, concepts, samples, inventions, manufacturing processes, computer programs and systems and know-how or other intellectual property, of a Party and its affiliates that may be at any time furnished, communicated or delivered by the Disclosing Party to the Receiving Party, whether in oral, tangible, electronic or other form; (ii) the terms of any agreement, including this Agreement, and the discussions, negotiations and proposals related to any agreement; (iii) information acquired during while present at a Party’s facilities; and (iv) all other non-public information provided by the Disclosing Party hereunder. All Confidential Information shall remain the property of the Disclosing Party. Confidential Information does not include information that: (1) was in Receiving Party’s possession before receipt from Disclosing Party; (2) becomes generally available to the public other than through any act or omission of the Receiving Party; (3) is developed by Receiving Party independently of any Confidential Information it receives from Disclosing Party; (4) Receiving Party receives from a third party free to make such disclosure without, to the best of Receiving Party’s knowledge, breach of any legal or contractual obligation, or (5) is disclosed by Receiving Party with Disclosing Party's prior written approval.
- Authorized. The Receiving Party shall maintain the Confidential Information in strict confidence and disclose the Confidential Information only to its employees, subcontractors, vendors, consultants and representatives who have a need to know such Confidential Information in order to fulfill the business affairs and transactions between the Parties contemplated by this Agreement. The Receiving Party shall not decompile, disassemble, or reverse engineer all or any part of the Confidential Information. If the Receiving Party is required to disclose Confidential Information by law or in connection with a legal matter, the Receiving Party shall promptly provide written notice to the Disclosing Party, unless prohibited by applicable law, to allow the Disclosing Party an opportunity to seek a protective order or other relief it deems appropriate, and the Receiving Party shall reasonably assist the Disclosing Party in such efforts. If disclosure is nonetheless required, the Receiving Party shall limit its disclosure to only that portion of the Confidential Information which it is advised by its legal counsel must be disclosed.
- Unauthorized. If the Receiving Party discovers that Confidential Information has been used, disseminated or accessed in violation of this Agreement, Receiving Party will immediately notify the Disclosing Party, take reasonable actions to minimize the impact of the use, dissemination or publication, and take reasonable steps to prevent any further breach. The Parties agree and acknowledge that any breach or threatened breach regarding the treatment of the Confidential Information may result in irreparable harm to the Disclosing Party for which there may be no adequate remedy at law. In such event the Disclosing Party shall be entitled to seek an injunction, without the necessity of posting a bond, to prevent any further breach of this Agreement, in addition to all other remedies available in law or at equity.
(c) Return of
The Receiving Party shall promptly return or, at Disclosing Party’s option, certify destruction of all copies of Confidential Information at any time upon request or within thirty (30) days following the expiration or earlier termination of this Agreement.
Each party (the “Indemnifying Party”) agrees to indemnify, defend and hold the other party and its affiliates and their respective officers, directors, employees and agents harmless from and against any and all third party claims, losses, liabilities, damages, expenses and costs, including reasonable outside attorney’s fees and court costs, arising out of the Indemnifying Party’s (i) gross negligence or willful misconduct or (ii) its material breach of any of the terms of this Agreement. The Indemnifying Party’s liability under this Section shall be reduced proportionally to the extent that any act or omission of the other Party, or its employees or agents, contributed to such liability. The party seeking indemnification shall provide the Indemnifying Party with prompt written notice of any claim and give complete control of the defense and settlement to the Indemnifying Party, and shall cooperate with the Indemnifying Party, its insurance company and its legal counsel in its defense of such claim(s). This indemnity shall not cover any claim in which there is a failure to give the Indemnifying Party prompt notice to the extent such lack of notice prejudices the defense of the claim.
THIS SECTION 5 STATES THE ENTIRE OBLIGATION AND THE EXCLUSIVE REMEDIES WITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS HEREUNDER.
8. Limitation of Liability / Actions
IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, SLOWDOWN COSTS, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. SUBJECT TO THE BUYER’S OBLIGATION TO PAY THE FEES TO SERVICE PROVIDER, SERVICE PROVIDER’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO ANY SERVICES PERFORMED UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY THE BUYER TO SERVICE PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THIS SECTION 6 SHALL SURVIVE THE TERMINATION OF THE AGREEMENT.
9. Termination / Remedies
(a) Material Breach
Either Party may terminate this Agreement at any time in the event of a breach by the other Party of a material covenant, commitment or obligation under this Agreement that remains uncured: (i) if a monetary breach, ten (10) calendar days following the receipt of written notice thereof from the non-breaching Party; and (ii) if a non-monetary breach, thirty (30) calendar days following the receipt of written notice thereof from the non-breaching Party. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either Party. Termination shall be in addition to any other remedies that may be available to the non-breaching Party.
(b) Financial Insecurity
Either Party may terminate this Agreement immediately upon written notice if the other Party: (1) becomes or is declared insolvent or bankrupt; (2) is the subject of a voluntary or involuntary bankruptcy or other proceeding related to its liquidation or solvency, which proceeding is not dismissed within ninety (90) calendar days after its filing; (3) ceases to do business in the normal course; or (4) makes an assignment for the benefit of creditors. This Agreement shall terminate immediately and automatically upon any determination by a court of competent jurisdiction that either Party is excused or prohibited from performing in full all obligations hereunder, including, without limitation, rejection of this Agreement pursuant to 11 U.S.C. §365.
Either Party may terminate this Agreement at any time with or without cause by giving thirty (30) days prior written notice; provided that Buyer immediately pays any outstanding invoices and reimburses Service Provider for any costs or fees incurred as a result of Service Provider having to cancel any Purchase Orders because of Buyer’s termination.
(d) Obligations upon Termination
Termination of this Agreement does not discharge either Party's liability for obligations incurred hereunder and amounts unpaid at the time of such termination. Buyer shall pay Service Provider for all services rendered prior to the effective date of termination. Upon termination, each Party shall return the other Party’s Confidential Information that is in its possession at the time of termination and promptly return any equipment, materials or other property relating to the terminated services which are in each Party’s respective possession or control.
The Parties agree that Service Provider may use subcontractors to perform all or a portion of the Services. For purposes of this Agreement, “subcontractor” shall mean a person or entity that has a direct contract with Service Provider to perform all or a portion of the Services. When used herein, the word “subcontractor” shall include the subcontractor and an authorized representative of the subcontractor. Each subcontractor shall possess the requisite skills, experience, tools, and personnel to perform its assigned portion of the Services in a professional and timely manner. Service Provider shall enter into appropriate written agreements with each subcontractor. The subcontractor agreements will preserve and protect Buyer’s rights under this Agreement with respect to the Services to be performed by the subcontractor.
During the Term and for one (1) year following the expiration or termination date of this Agreement, neither Party will directly or indirectly solicit or induce any person who performs Services hereunder to leave the employ or contractual relationship of the other Party. The Parties are not prohibited from responding to or hiring the other’s employees who inquire about employment on their own accord or in response to a public advertisement or employment solicitation in general.
12. Relationship of The Parties
The relationship of the Parties is that of independent contractors. Nothing in this Agreement, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party’s employees or agents. Each of the Parties is an independent contractor and neither Party has the authority to bind or contract any obligation in the name of or on account of the other Party or to incur any liability or make any statements, representations, warranties or commitments on behalf of the other Party, or otherwise act on behalf of the other. Each Party shall be solely responsible for payment of the salaries of its employees and personnel (including withholding of income taxes and social security), workers compensation, and all other employment benefits.
Any notice required or permitted hereunder will be provided via electronic communication to the electronic mail addresses set forth on the signature page hereto (each notice so provided, an “Electronic Notice”). An Electronic Notice will be deemed effective upon the earlier of the time that the Party sending the Electronic Notice receives verification of receipt from the receiving party or one (1) business day after the Electronic Notice is sent. If the Party receiving the Electronic Notice responds to the sending Party by sending a request to each of the sending Party’s electronic mail addresses (as set forth on the signature page hereto) asking to receive an Electronic Notice on paper, in nonelectronic form (a “Nonelectronic Notice”), the sending Party will send such Nonelectronic Notice within ten (10) calendar days following receipt of such request.
14. Force Majeure
Neither Party shall be liable to the other Party hereunder for any failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, acts of God, pandemics, epidemics, or other occurrences beyond the reasonable control (a “Force Majeure Event”), for so long as such Force Majeure Event is in effect. Each Party shall use reasonable efforts to notify the other Party of the occurrence of such an event within three (3) business days of its occurrence.
15. Governing Law and Venue / Waiver of Jury Trial
This Agreement will be governed by and interpreted in accordance with the laws of the District of Columbia, without giving effect to the principles of conflicts of law of such state. The UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Parties hereby agree that any action arising out of this Agreement will be brought solely in any state or federal court located in Washington County, District of Columbia. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court.
WAIVER OF RIGHT TO JURY TRIAL. SERVICE PROVIDER AND BUYER HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY WAIVE THEIR RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM, WHETHER AT LAW OR IN EQUITY, BROUGHT BY EITHER OF THEM AGAINST THE OTHER, WHETHER OR NOT THERE ARE OTHER PARTIES IN SUCH ACTION OR PROCEEDING.
16. Attorney’s Fees
If Service Provider incurs any legal fees associated with the enforcement of this Agreement or any rights under this Agreement, Service Provider shall be entitled to recover its reasonable outside attorney’s fees and any court, arbitration, mediation, or other litigation expenses from Customer.
17. Collection Expenses
If Service Provider incurs any costs, expenses, or fees, including reasonable outside attorney’s fees and professional collection services fees, in connection with the collection or payment of any amounts due under this Agreement, Buyer agrees to reimburse Service Provider for all such costs, expenses and fees.
18. Assignment / No Third Party Beneficiaries
Neither Party may assign this Agreement, either in whole or part, without the express written consent of the other Party. Any assignment without such consent shall be null and void. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of the successors, assigns and legal representatives of the Parties. There are no third party beneficiaries to this Agreement.
No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter.
If any provision or portion of this Agreement shall be rendered by applicable law or held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, such provision or portion will be construed and enforced to the greatest possible extent and the validity of the remaining provisions or portions shall remain in full force and effect.
21. Headings / Construction
The headings/captions in this Agreement are for purposes of convenience and ready reference, only. This Agreement is the result of negotiations between the Parties and their counsel. Accordingly, this Agreement shall not be construed more strongly against either Party regardless of which Party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting Party. The exhibits to this Agreement are incorporated and shall be deemed a part of it as if set forth herein in full. References herein to “this Agreement” and the words “herein,” “hereof” and words of similar import refer to this Agreement (including its exhibits as an entirety). The pronouns “it, its and itself” as used herein shall refer to he, she, his, her, himself and herself where appropriate. The pronouns he, she, his, her, himself and herself shall include the pronouns “they, their, and themselves” where appropriate. To avoid the unwieldly use of “and/or,” throughout this Agreement, the Parties agree that, where appropriate, use of the word “and” will be read to include use of the word “or” and vice versa.
22. Rights Cumulative
The rights and remedies of the Parties herein shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
Each term and provision of this Agreement that should by its sense and context survive any termination or expiration of this Agreement, shall so survive regardless of the cause and even if resulting from the material breach of either Party to this Agreement.