Last Revised on October 15, 2020
(a) Performance. Quantified Communications ("QC") shall provide the services to Client as set forth in the Order Form (the “Services”). QC may subcontract any Services without the consent of Client. Before subcontracting any Services to any subcontractor, QC shall enter into a written agreement with each such subcontractor that gives effect to QC’s obligations of under this Agreement, including all obligations of QC under this Agreement relating to Confidential Information. QC shall remain solely responsible for all of its obligations under this Agreement.
(b) Client Responsibilities. Client shall perform the tasks and fulfill the responsibilities specified in the Order Form as tasks and responsibilities that Client will perform or fulfill (“Client Responsibilities”). The fees set forth in the Order Form and QC’s performance of Services are subject to: (i) Client completing Client Responsibilities in a timely manner; (ii) the assumptions set forth in the Order Form remaining valid; and (iii) Client obtaining all licenses and consents required from third parties with respect to any materials provided by Client under this Agreement that are required for use by QC to fulfill its obligations hereunder.
2. Fees and Taxes
(a) Fees. Client shall pay QC the applicable fees set forth in the Order Form pursuant to the payment terms therein. Any payment not received from Client when due shall incur interest at the rate of one and a half percent (1.5%) per month or the maximum rate permitted by law, whichever is less.
(b) Expenses. If QC personnel incur travel, lodging, meal and other similar expenses in order to provide the Services, Client shall reimburse QC for such expenses as reasonably incurred and supported by documentation. Notwithstanding this Section 2(b), any such individual expense in excessive of one thousand dollars ($1000) must be pre-approved in writing by Client.
(c) Taxes. All amounts payable hereunder by Client are exclusive of any value added, sales, use, excise or other similar taxes (collectively, “Taxes”). Client shall be solely responsible for paying all applicable Taxes. If QC has the legal obligation to collect any Taxes, Client shall reimburse QC upon invoice by QC. If Client is required by law to withhold any taxes from its payments to QC, Client shall provide QC with an official tax receipt or other appropriate documentation to support such payments and take reasonable steps to minimize such payments.
3. Intellectual Property
(a) QC Ownership. As between QC and Client, QC owns all right, title and interest (including all intellectual property rights in any software, technologies, concepts, approaches, methodologies, algorithms, models and tools) in and to QC Materials. As used herein, “QC Materials” means any intellectual property that: (i) QC already owned prior to the Effective Date; (ii) QC creates, or is created on behalf of QC, independent from the Services; and (iii) any modification, improvement, adaptation, translation or derivative work based upon any materials covered by the preceding clause (i) or (ii).
(b) Client Ownership. As between Client and QC, Client owns all right, title and interest (including all intellectual property rights) in and to any: (i) data that Client provides for use by QC (“Client Data”); and (ii) written reports and assessments provided by QC to Client pursuant to this Agreement (“Reports”). Client hereby grants QC a non-exclusive, royalty-free license to use Client Data as necessary for QC to provide the Services.
(c) Reservation of Rights. Each party reserves all rights not expressly granted under this Agreement.
4. Term, Suspension and Termination
(a) Term. The term for this Agreement shall commence on the Effective Date and continue in effect until the concluding date for Services set forth in the Order Form or the date on which all Services have been provided, whichever is later.
(b) Termination. Notwithstanding anything to the contrary, this Agreement may be terminated as follows by either party: (i) upon written notice to the other party of a material breach of this Agreement by the other party, which breach the other party does not cure within thirty (30) days after receipt of written notice of the material breach; or (ii) in the event the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business. Notwithstanding the termination of this Agreement for any reason, neither party will be relieved of any duty, obligation, debt or liability that arose or accrued prior to the effective date of termination.
(c) Suspension. In the event that Client does not pay any fees when due under this Agreement, QC may suspend all Services without any liability to Client until Client has paid all such fees.
(d) Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement shall survive such expiration or termination, including Sections: 2 (Fees and Taxes); 3 (Intellectual Property); 4(d) (Survival); 5 (Representations and Warranties); 6 (Indemnification); 7 (Confidential Information); 8 (Disclaimer of Warranties); 9 (Limitation of Liability); and 10 (Miscellaneous).
5. Representations and Warranties
(a) General. QC and Client each represents and warrants to the other that: (i) it has the necessary power and authority to enter into this Agreement; (ii) the execution and performance of this Agreement have been authorized by all necessary corporate or institutional action; (iii) entry into and performance of this Agreement will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of such party; (iv) no action by any governmental organization is necessary to make this Agreement valid and binding upon such party; and (v) it possesses all governmental licenses and approvals necessary to perform its obligations under this Agreement.
(b) QC Representations and Warranties. QC further represents and warrants that QC will perform the Services in a competent and workmanlike manner.
(a) QC Indemnification. QC agrees that Client shall have no liability and QC shall indemnify, defend and hold Client harmless against any loss, damage, cost, liability and expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or paid in settlement to the extent arising from any action or claim of a third party (collectively, “Losses”) asserting that Reports infringe the intellectual property or other proprietary rights of such third party.
(b) Client Indemnification. Client agrees that QC shall have no liability and Client shall indemnify, defend and hold QC harmless against any Loss to the extent arising from infringement of the intellectual property or other proprietary rights of a third party attributable to QC’s use of Client Data in accordance with this Agreement.
(c) Procedure. The indemnified party shall: (i) give the indemnifying party prompt written notice of any indemnified claim; (ii) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any indemnified claim; and (iii) give the indemnifying party sole and complete control over the defense or settlement of any indemnified claim; provided, however, that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation.
7. Confidential Information
(a) Definition. “Confidential Information” means information that the disclosing party identifies in good faith as confidential or proprietary or, given the nature of the information or the circumstances surrounding its disclosure, the receiving party should reasonably understand to be confidential or proprietary. Confidential Information includes QC Materials and Client Data.
(b) Non-Disclosure. Each party may use Confidential Information only as necessary to exercise its rights and discharge its obligations under this Agreement. Neither party shall disclose Confidential Information to a third party. The receiving party shall protect Confidential Information using the same degree of care it uses to protect the confidentiality of its own confidential information of like nature, but no less than a reasonable degree of care. The foregoing obligations shall not apply to any Confidential Information that: (i) was publicly known at the time the disclosing party disclosed such Confidential Information to the receiving party; (ii) becomes part of the public domain or publicly known not due to any unauthorized act or omission by the receiving party; (iii) is independently developed by the receiving party without reference to or reliance upon such Confidential Information; (iv) is provided to the receiving party by a third party who is under no obligation to the disclosing party to keep the information confidential; or (v) is required to be disclosed by law, in which case the receiving party shall take reasonable actions to minimize such disclosure and promptly notify the disclosing party of the request for disclosure, to the extent permitted by law, so that the disclosing party may take lawful actions to avoid or minimize such disclosure. Notwithstanding anything to the contrary, QC may identify Client as a customer of QC without disclosing the nature of the services provided by QC to Client.
8. DISCLAIMER OF WARRANTIES
EACH PARTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXCEPT AS SET FORTH IN SECTION 5), EXPRESS OR IMPLIED, INCLUDING: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF ANY MATERIALS OR SERVICES PROVIDED UNDER THIS AGREEMENT, OR THAT USE OF SUCH MATERIALS OR SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET CUSTOMER’S REQUIREMENTS.
9. LIMITATION OF LIABILITY
OTHER THAN WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6 OR BREACH OF SECTION 7: (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COST OF COVER, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE THE MATERIALS OR SERVICES PROVIDED UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE; AND (B) IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES RECEIVED BY QC FROM CUSTOMER UNDER THIS AGREEMENT.
(a) Independent Contractors. The relationship between QC and Client established by this Agreement is solely that of independent contractors. Neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party, without the express prior written consent of such other party.
(b) Non-Solicitation. Neither party shall knowingly employ or engage (whether directly or indirectly) or otherwise hire or induce the termination of employment of any personnel of the other party who has actively participated in the Services (“Restricted Personnel”) during such Restricted Personnel’s active participation in the Services and for a period of twelve (12) months thereafter. Nothing in this Section 10(b) prohibits a party from hiring Restricted Personnel of the other party who responds to a general solicitation of employment not specifically directed to the Restricted Personnel or approaches the hiring party on a wholly unsolicited basis, but only if the Restricted Personnel does not perform any functions for the hiring party that relate to this Agreement.
(c) Notice. All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and sent to the parties according to the contact information provided in the Order Form.
(d) Assignment. Neither party may assign this Agreement, or assign or delegate any right or obligation hereunder, by operation of law or otherwise, without the prior written consent of the other party; provided, however, that no consent shall be required with respect to an assignment by either party to an affiliate or as part of any transfer by merger, acquisition, stock transfer or other consolidation of with another entity, or sale of all or substantially all of such party’s assets. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(e) Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter. In the event of any conflict between this Agreement and any Policy, the terms and conditions of this Agreement shall take precedence.
(f) Amendment. This Agreement may not be amended except in a writing executed by an authorized representative of each party.
(g) Severability. If any provision of this Agreement shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.
(h) Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the United States of America and the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
(i) Jurisdiction. The parties agree that any action, proceeding, controversy or claim between them arising out of or relating to this Agreement (collectively, an “Action”) shall be brought only in a court of competent jurisdiction in Austin, Texas. Each party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Action.
(j) No Waiver. The failure of either party to require strict performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of this Agreement, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced.
(k) Force Majeure. Neither party shall be liable for any failure to perform under this Agreement to the extent due to any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction of production facilities, insurrection or any other cause beyond the reasonable control of the party invoking this provision.