This Contract, effective as of date, _______________________ , is made and entered into by and between The Partnership, Inc. (hereinafter the “Client”), and CAMI Studio, LLC, (hereinafter the “Contractor”). Whereas, Contractor and Client desire to enter into a relationship in which Contractor will provide the services listed in the Statement of Work attached and herein referred to as (“Statement of Work”).
Now, therefore, in consideration of the premises, and of the mutual promises and undertakings herein contained, the parties, intending to be legally bound, do hereby agree as follows:
For purposes of this Agreement, the following terms shall have the following meanings:
“Acceptance Test” means an inspection and/or other verification by the Client to confirm the Deliverable meets the standards set forth in the Statement of Work and Section 6 of this Agreement. “Access” means the right to use, communicate, or approach something or someone. “Commercial off-the-shelf (COTS) Products” means a software and/or hardware product that is commercially ready-made and available for sale, lease, or license to the general public. “Claim” means a set of operative facts creating a right enforceable in court. “Completion Criteria” means an event or task described in the Statement of Work which shall be completed by the relevant date set forth in the Statement of Work. “Confidential Information” means any information that is treated as confidential by a party, including but not limited to all non-public information about its business affairs, products or services, Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information whether disclosed orally or in written, electronic, or other form or media and whether or not marked, designated, or otherwise identified as “confidential”. Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information. “Content” means any text, graphics, images, audio, video, software, code, data compilations and any other form of information. “Contractor Proprietary Items” means (a) Contractor Technology and (b) all other proprietary systems, technology, methodologies, specifications, trade secrets, Software or requirements owned by Contractor. “Default” means failure to pay a Debt or its instalment when due as stated in the Agreement. “Deliverables” means any tangible property, including software and media, delivered to Client under this Service Contract, as specified in the Statement of Work. “Delivery” means the transfer from Contractor to Client of the specified amount of the Product or Deliverable, as specified pursuant to the Statement of Work. ”Disclosing Party” means a party that discloses Confidential Information under this Agreement. “Disclosure” means any instance of public sharing of confidential information. “Final Delivery” means delivery of the Product in full, in compliance with the terms and conditions of the contract at the point of delivery specified in the contract. ”Intellectual Property Rights” means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, and other similar designations of source or origin, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world. “Invoice” means the document submitted to the Client in which the Contractor outlines the fees for time along with a breakdown of any expenses incurred. “License” means permission granted by a qualified authority permitting a licensee to do something that would otherwise be prohibited. Licenses generally allow individuals and entities to use patents, trademarks, and creative works owned by others without infringing on the owners’ property rights. “Materials” means any tools, equipment, systems, cabling, or facilities provided by or on behalf of the Contractor and used directly or indirectly in the provision of the Services. “Notice” means any communication given or required to be given pursuant to the Agreement. ”Permitted Subcontractor” has the meaning set forth in Section 15. ”Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity. ”Pre-Existing Materials” means all documents, data, know-how, methodologies, software and other materials, including computer programs, reports and specifications, provided by or used by the Contractor in connection with performing the Services, in each case developed or acquired by the Contractor prior to the commencement or independently of this Agreement. “Product” means any deliverable under the Contract, which may include commodities, services, technology or software. “Project” means the combination of Services and Deliverables to be provided under this Agreement as stated in the Statement of Work. “Project Price” shall be the agreed-upon remuneration received by the Contractor in exchange for the completion and delivery of the Project to the Client. “Re-delivery” means an order to get your Product or Service delivered again in the event the first delivery attempt was not successful or up to standard. ”Receiving Party” means a party that receives or acquires Confidential Information directly or indirectly under this Agreement. “Refund” means a repayment or restoration of money previously paid for a product or service. “Repair” means the restoration of a damaged, broken or failed device to return it to its original intent. “Replacement” means furnishing a new consumer product which is identical or reasonably equivalent to the warranted consumer product. “Services” means any and all services specified in the Statement of Work. “Software Source Code” means alphanumeric text in which most computer software is originally written, consisting of coded instructions in a programming language, such as Java or C++. “Statement of Nonconformities” means a clear statement identifying in detail the objective evidence on which the nonconformity, on deficiency of standard of the Deliverable, is based. ”Statement of Work” or “SOW” means each Statement of Work entered into by the parties and re-stated in this Agreement, substantially in the form of Attachment A. “Suspension of Work” means when a Contractor decides to temporarily hold off his work, which could occur for various reasons, especially in the case of payment issues. “Third Party” means any person (including companies, partnerships, legal entities, churches, governmental authorities and agencies) who is not a party to the agreement. “Title” is the ownership of an Intellectual Property Right.
2. STATEMENT OF WORK
Contractor shall perform and deliver the Project as set forth in the Statement of Work, attached, issued against and subject to the terms and conditions of this Agreement.
The term of this Agreement shall commence on date of signing, and shall continue thereafter until terminated in writing by one of the parties, or as provided in Section 11 below.
4. TERMS OF PAYMENT
All payments hereunder shall be in US dollars and made by check or card.
a. PRICE. Projects will be performed on a firm fixed price basis, as indicated in the Statement of Work. Any additional or unscheduled Services or Deliverables to be provided by Contractor outside of the Statement of Work must be mutually agreed upon in writing signed by both parties hereto referencing this Agreement.
b. TAXES. The Project Price does not include and Client is responsible for all taxes (except taxes on Contractor’s income) tariffs, and any similar charges imposed upon or related to the Services or Deliverables or their delivery or use.
c. PAYMENT SCHEDULE. Client will receive invoices based upon the billing/payment schedule contained in the applicable Statement of Work. Invoices will contain a description of the Services or Deliverables provided. Invoices are due and payable within 15 business days of Contractor’s invoice date.
d. LATE PAYMENTS. In the event payments are not received by Service Provider within 5 business days after Final Delivery, Interest may be charged on all amounts unpaid at the annual rate of 1-1.5% percent per month or, if lower, the maximum amount permitted under Law, from the date such payment was due until the date paid.
If any invoice is not paid when due, Contractor may suspend provision of Services and/or Deliverables without liability or penalty until final resolution of the matter.
Except for commercial off-the-shelf (COTS) products, where the license for such products is contained in the applicable Statement of Work, Client shall have exclusive unlimited ownership rights to all deliverables developed under this Agreement.
Client is, and shall be, the sole and exclusive owner of all right, title, and interest in and to the Deliverables, including all Intellectual Property Rights therein. Contractor agrees that with respect to any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. § 101, such Deliverables are hereby deemed a “work made for hire” for Customer.
Client acknowledges that Contractor uses, or may develop hereunder, methods, concepts, code sequences, format, sequence structure, organization, menu command hierarchy, templates, masks, user interface, techniques, program organization, database structuring techniques, and the like (Contractor proprietary items) that are proprietary to Contractor. It is agreed that these Contractor proprietary items shall remain the sole and exclusive property of Contractor.
Contractor grants Client a perpetual, non-exclusive, paid-up license to use Contractor proprietary items subject to the following:
Client may use Contractor proprietary items solely in connection with the products purchased hereunder, for the purpose for which those products were originally purchased. Client may not transfer, sell, or otherwise dispose of any Contractor proprietary items without the prior written consent of Contractor, excluding cases of cases of merger, joint venture, fiscal sponsorship or sale of all or substantially all of our assets, or any transfer to subsidiaries owned or controlled by the Client. This license gives no title or ownership rights in Contractor proprietary items or related intellectual property to Client. If software source code is delivered to Client under this license, Client agrees to keep the source code strictly confidential in accordance with Section 13 below. If software object code is delivered, Client will not copy or modify the software or subject the software to any process intended to create computer source code from Contractor proprietary items. Client agrees to retain or reproduce on all copies of any Contractor proprietary items all copyright notices and other proprietary legends and all trademarks or service marks of Contractor or any third party. Client will have no rights to assign or sell the license granted herein to Third Parties excluding cases of cases of merger, joint venture, fiscal sponsorship or sale of all or substantially all of our assets, or any transfer to subsidiaries owned or controlled by the Client. If Client orders any Commercial off-the-shelf (COTS) type-products, a separate licensing agreement shall be negotiated and shall become part of the applicable Statement of Work. Client grants Contractor a perpetual non-exclusive, paid-up license to use all portions of the deliverables first developed by Contractor during the performance of this Agreement, not to include content or any material provided to Contractor by Client.
The Deliverables, if any, shall be deemed accepted by Client upon completion of the following acceptance test:
Immediately upon receipt of said Deliverables, Client shall promptly perform testing of the Deliverables to confirm that the Deliverables perform in accordance with the standards applicable thereto as set forth in the Statement of Work. Client shall either promptly provide written acceptance or a statement of nonconformities within five (5) business days of initial receipt of said Deliverables. If Client does not provide written acceptance within five (5) business days, the Deliverables shall be deemed accepted by Client. If Client delivers to Contractor a detailed written statement of nonconformities to be corrected prior to Client’s acceptance of the Deliverables, any such written statement of nonconformities shall provide sufficient detail to enable Contractor to remedy the failure to conform to the Completion Criteria. Unless otherwise agreed to in writing by the parties, Contractor will redeliver corrected Deliverables to Client within a reasonable amount of time after receipt of such statement of nonconformities. Following redelivery of corrected Deliverables, a new acceptance test shall be immediately commenced by Client. Client shall provide written acceptance or a statement of nonconformities within five (5) business days of re-delivery of said corrected Deliverables. If Client does not provide written acceptance within five (5) business days, the Deliverables shall be deemed accepted by Client.
7. WARRANTIES AND REMEDIES
Contractor warrants deliverable functionality substantially as defined in the Statement of Work for a 180 day period following final delivery. Contractor warrants that with respect to any Deliverable assigned by Contractor to Client that Contractor has the right to transfer title to Client. Contractor further warrants that to its knowledge the Deliverables do not infringe any intellectual property right held by a third party. Client’s sole and exclusive remedy and Contractor’s only obligation for breach of the warranty hereunder will be, at Contractor’s option, to correct any material errors in provision of Services or to replace or repair Deliverables which do not conform to the warranty. In order for Client to exercise this remedy, Client must give Contractor written notice of such nonconformity within the warranty period, and Contractor must determine that any nonconformity did not arise due to any cause specified below. Contractor shall be given free and full access to deliverables to make corrections, and Client shall promptly inform Contractor of any changes in the location of Deliverables during the warranty period. If this remedy is adjudged to have failed of its essential purpose, Contractor’s total liability will be to refund the price paid to Contractor by Client for the nonconforming Deliverables. The remedy provided by Contractor for breach of warranty does not include the following, which may be provided, at Contractor’s sole option, at Contractor’s then-current time and materials rates: Repair of damage to Deliverables caused by Client during unpacking. Repair of damage caused by events beyond Contractor’s reasonable control. Repair of damage caused by Client’s improper installation, relocation, or rearrangement of Deliverables. Except for the warranties stated in this Section, Contractor DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SERVICES AND DELIVERABLES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AGAINST NON-INFRINGEMENT. Contractor expressly does not warrant that the operation of Deliverables which are software shall be uninterrupted or error-free; or that Deliverables will operate on any system, or with any software, other than the system with which the Contractor tested such Deliverables. Contractor does not warrant any third-party software development tools. Contractor specifically does not warrant the accuracy of any technical or subject matter content of the courseware or software that is based upon information or direction provided by Client.
8. LIMITATION OF LIABILITY
The total liability of Contractor to Client from any cause whatsoever, will be limited to the lesser of Client’s actual damages or the Project price paid to Contractor for those Services and Deliverables in a Project that are the subject of Client’s claim. In no event will either party be liable for SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, including but not limited to loss of profits, revenues, data or power, damage to or loss of the use of products, damage to property, claims of third parties, including personal injury or death, suffered as a result of provision of Services or use of Deliverables.
Time for Claims. All claims against Contractor must be brought within one (1) year after the cause of action arises and Client waives any statute of limitations which might apply by operation of law or otherwise.
Client shall defend, indemnify, and save Contractor harmless, at Client’s own expense, against any action or suit brought for any loss, damage, expense or liability that may result by reason of an infringement of any patent, trademark, copyright, or trade secret based upon the normal and intended use of the Deliverables furnished to Contractor hereunder. Should any of the Deliverables furnished to Contractor hereunder become the subject of a claim of any infringement of a patent, trademark, copyright, or trade secret, Client shall, at its option and expense, deliver non-infringing material, modify the material so that it becomes non-infringing, or procure for Contractor the right to continue using Client’s infringing material.
Client shall indemnify Contractor against all claims, liabilities, demands, damages, or expenses (including reasonably incurred attorney’s fees and expense) arising out of or in connection with Client’s use of the Deliverables, barring negligence or willful misconduct by part of the Contractor outside of the scope of the Client’s reasonable knowledge.
10. FORCE MAJEURE
Neither party shall be liable for failure to perform, nor be deemed to be in default, under this Agreement for any delay or failure in performance resulting from causes beyond its reasonable control, including but not limited to failure of performance by the other party, acts of state or governmental authorities, acts of terrorism, natural catastrophe, fire, storm, flood, earthquake, riot, insurrection, civil disturbance, sabotage, embargo, blockade, acts of war, or power failure. In the event of such delay, the date of delivery will be extended by a period of time reasonably necessary to overcome the effect of any such delay.
Termination of Project. Client reserves the right to terminate a Project in whole or in part, upon 15 business days written notice to Contractor. In the event the Project is terminated by Client prior to completion, Contractor shall use its best efforts to conclude or transfer the Project, as directed by Client, as expeditiously as possible. Contractor shall not undertake further work, incur additional expenses, or enter into further commitments with regard to the Project after receiving such notice of termination from Client, except as mutually agreed upon by the parties. In the event of termination of a Project as described above, Contractor shall be entitled to compensation as follows:
All payments due and owing under this Agreement at the time of Contractor’s receipt of the written notice of termination for work completed and in progress; Reimbursement for any non-cancelable services and commitments entered into by Contractor, in connection with the Project being terminated, provided Contractor provides Client with documentation of completion of work or expenses incurred.
Termination of the Project shall not affect either party’s obligations in connection with any other ongoing Projects and the rights and obligations of all non-terminating parties to the Agreement shall remain in full force and effect.
Failure by either party to comply in any material respect with any of its obligations in this Agreement shall entitle the other party to give notice to the party in default requiring it to cure such default. If such default is not cured within 5 business days after receipt of such notice, the notifying party shall be entitled to terminate this Agreement by giving notice of such termination to take effect immediately. The right of either party to terminate this Service Contract, as herein provided, shall not be affected in any way by its waiver of, or failure to take action with respect to, any previous default.
12. DELAY OR SUSPENSION OF WORK
If Client’s acts or failure to act causes Contractor to delay or suspend performance of Services, Contractor and Client will mutually agree to one of the following remedies:
Contractor will use reasonable efforts to continue performance as practicable under the circumstances and Client will continue to make all scheduled payments; or Contractor will re-assign personnel to extend Contractor’s work schedule without liability, and Client will pay all additional costs, if any.
Notwithstanding the above, Contractor shall have the right to invoice Client for any work performed to date of suspension.
Contractor and Client acknowledge that during the course of the performance of a Project, information of a confidential nature may be disclosed between the parties. Such information, excluding the Deliverables and any other information incident to the Deliverables that a party could reasonably be expected to be provided to the other party as contemplated hereunder, shall be considered confidential information (“Confidential Information”). Neither party has the right to disclose the Confidential Information of the other, in whole or in part, to any third party, and neither party will make use of the Confidential Information of the other for its own or a third party’s benefit or in any way use such Confidential Information other than for the purposes of performance of this Agreement without the prior written consent of the disclosing party. Each party agrees to take all steps reasonable to protect the other’s Confidential Information from unauthorized use and/or disclosure. The parties agree not to copy in whole or in part, any Confidential Information nor modify the same in any way without prior written consent from the other party. Neither party will be liable to the other for the disclosure of Confidential Information if, as shown by clear and convincing evidence, the Confidential Information: (a) is generally known to the public at the time of disclosure by the disclosing party; or (b) becomes generally known to the public through no fault of the receiving party; or (c) was lawfully in the possession of the receiving party prior to signing this Agreement; or (d) is subject to applicable United States laws or a valid court order requiring disclosure of such Confidential Information.
In any judicial proceeding, it will be presumed that the Confidential Information in question constitutes protectable trade secrets of the disclosing party, and the receiving party shall bear the burden of proving that the Confidential Information was publicly or rightfully known or disclosed.
Contractor may use Client’s name or mark and identify Client as a client of Contractor, on Contractor’s website and/or marketing materials. Contractor may issue a press release, containing Client’s name, related to any award under this Agreement. Neither party will use the other party’s name or marks, refer to or identify the other party for any other reason, except as established in this section, without such other party’s written approval. Any approval required under this Section shall not be unreasonably withheld or delayed by either party.
Contractor may, at its option, subcontract work under the Statement of Work but Contractor’s use of subcontractors shall not affect its responsibilities under the applicable Statement of Work.
Moreover, Contractor shall be fully responsible for work done by its subcontractors within the scope of the applicable Statement of Work as it is for work done by its own employees. Contractor shall have written agreement(s) with its subcontractors that contain, at a minimum, clauses that are the same as or comparable to the sections of this Agreement regarding ownership rights and confidentiality of Client’s materials.
16. GENERAL TERMS
This Service Contract shall be deemed to have been made, executed and delivered in the State of Texas and shall be construed in accordance with the laws of the State of Texas. NOTICES. Notices to be given by either party under this Agreement shall be sent by email, to the attention of the other party at the addresses of the parties as set forth above. SEVERABILITY AND ASSIGNMENT. The invalidity or unenforceability, in whole or in part, of any provision in this Agreement shall not affect in any way the remainder of the provisions herein. This Agreement may not be assigned by Client without Contractor’s consent. ENTIRE AGREEMENT. This Agreement, together with any other materials referenced in or expressly made a part of the Agreement, constitutes the final and entire Agreement between Contractor and Client and supersedes all prior and contemporary agreements, oral or written. COUNTERPARTS. The Parties hereto agree that facsimile signatures shall be as effective as if originals. This Agreement may be executed via facsimile in any number of counterparts, all of which taken together shall constitute one and the same agreement.
In Witness Whereof, this Agreement is duly executed by the duly authorized representatives of the parties as set forth below: