Standard Customer Engagement Agreement
The parties hereby agree as follows:
1. Scope of Agreement
1.1 General. This Agreement specifies the terms and conditions under which Company agrees to provide awards, promotional products, and services as well as custom development, manufacturing, order fulfillment and repair services for various Products and future products to be developed based on product requirements provided by Customer.
1.2 Customer Obligations. Without limiting any specific obligation specified in this
Agreement, Customer will:
1.2.1 Provide the Product Requirements including but not limited to written product, test, and packaging specifications in a timely manner.
1.2.2 Provide Requirement changes in accordance with the procedures specified in
Article 3 of this Agreement.
1.2.3 Provide to Company detailed drawings, descriptions, or guidelines for any labeling requirements for Customer.
1.2.4 Provide approval or disapproval for any Product Selection, Design & Engineering, and Manufacturing Change Orders necessary to improve the Products.
1.2.5 Provide other ordering and manufacturing information from time to time that Customer believes will assist Company in procuring, designing and manufacturing the Products.
1.3 Term of Agreement. This Agreement will commence upon Customer explicit engagement with Company and/or purchase or any product and/or service and continue for a one (1) year period (the “Term”), unless terminated earlier under the terms of this Agreement. After the initial Term, this Agreement will automatically extend for a one year (1) period unless otherwise mutually agreed to in writing or if notified by Customer with a minimum of ninety (90) days’ notice prior to renewal.
The following terms in bold will have these definitions for the purposes of this Agreement:
2.1 “Deliverables” mean the Prototypes, Products, Test Reports, Documentation and any other deliverable Customer requires Company to develop or deliver under this Agreement.
2.2 “Delivery Date” means the date specified in an Order for the delivery of Customer Products by Company to the destination required under the Order.
2.3 “Delivery Schedule” means the detailed schedule of milestones with corresponding delivery dates for the design, development, and manufacture of the Deliverables, as specified in correspondence between Company and Customer.
2.4 “Procurement, Design & Engineering Changes” means the implementation of the procurement, design and engineering changes and other Requirements provided by Customer or recommended by Company that will be used to make improvements to the Product.
2.5 “Documentation” means the detail drawings, component specifications, BOM and other documentation used to manufacture the products that will be prepared in accordance with the terms of this Agreement and made available for use in connection with distribution of the Products.
2.6 “Forecast” means Customer’s estimate of its purchase requirements over a twelve month period, or such other period designated by the parties.
2.7 “Products” means each of the products described in Purchase Orders, Invoices, Order Acknowledgements, and other correspondence between Customer and Company to be manufactured by Company based on the Requirements provided by Customer.
2.8 “Customer Property ” means Customer equipment, materials and information, including Tools, provided to Company by Customer or on Customer’s behalf or separately paid for by Customer for use by Company in connection with this Agreement.
2.9 “Intellectual Property Rights” means all rights in patents, patent applications, copyrights, moral rights, trade secrets, marks and other similar rights.
2.10 “Lead Time” means the time between the date an Order is released to Company and the Delivery Date of the product to Customer’s site.
2.11 “Marks” means the trademarks, service marks, trademark and service mark applications, trade dress, trade names, logos, insignia, symbols, designs or other marks identifying a party or its products.
2.12 “Non-complying Products” means any Customer Product received by Customer that does not comply with the Requirements or Specifications, or otherwise does not comply with the requirements of an Order or other provisions of this Agreement. Non- complying Products include non-functioning products.
2.13 “Parts” means replacement parts, components, consumables or other products that may be supplied in conjunction with or as additions to the Products.
2.14 “Orders” means a written or electronic purchase order or release issued by Customer to
Company for purchase of the Products.
2.15 “Pre-Existing Intellectual Property” means any trade secret, invention, work of authorship, or protectable design that has been conceived or developed prior to performance of this Agreement.
2.16 “Prototype” means the pre-production unit of a Product, packaged in a production package, and manufactured in accordance with the Requirements and Specifications with full test verification.
2.17 “Requirements” means the Customer-supplied design and technical information, drawings, concepts, schematics, software and other related material, which will be used by Company in the manufacturing of the Products.
2.18 “Technical Assistance” means Company-provided assistance, training and consultation whether technical in nature or otherwise relating to the manufacture, operation, use, testing, quality control and maintenance of the Products.
2.19 “Technical Product Information” means the product information used by Company or third parties to design, develop, or test the Products including but not limited to: (i) specifications, software, schematics, designs, patterns, drawings or other materials pertinent to the most current revision level of manufacturing of the Products; (ii) jig, fixture and tooling designs owned by Customer; (iii) support documentation owned by Customer; (iv) any additional technical information or materials related to the product design listed in a separate agreement agreed to by the parties or otherwise deemed necessary by Customer to exercise any rights provided under this Agreement.
2.20 “Technical Manufacturing Information” means the manufacturing information, process and technology used by Company or third parties under its control to manufacture the Products including, but not limited to: (i) copies of all inspection, manufacturing, test and quality control procedures and any other work processes; (iii) jig, fixture and tooling designs owned by Company; (iv) Company history files; (v) support documentation owned by Company; and (vi) any additional technical information or materials related to the manufacturing of the Product listed in an escrow agreement agreed to by the parties or otherwise deemed necessary by Company to exercise any rights provided under this Agreement.
2.21 “Test Reports” means the documentation prepared by Company that includes records of tests conducted and results obtained with respect to both hardware and software components of the Prototypes.
2.22 “Tools” means any tooling, dies, jigs or fixtures or other property either built or acquired by Company in connection with its performance of this Agreement.
3. Statement of Work
3.1 Procurement & Engineering Changes Proposed by Customer
Upon requests by Customer for procurement, design, & engineering changes (provided in written description form):
3.1.1 Company will evaluate proposed changes for feasibility and cost. Such evaluation will state the costs and time of implementation and the impact on the delivery schedule and pricing of the Product. Company will not be obligated to proceed with the change until the parties have agreed upon the changes to the Product’s Specifications, delivery schedule and Product pricing and upon the implementation costs to be borne by Customer including, without limitation, the cost of inventory and special inventory on- hand and on-order that becomes obsolete.
3.1.2 Company will provide a quote for estimated services and costs for materials and/or tooling including a plan outlining the schedule for completion of such changes.
3.1.3 Customer will issue separate Purchase Orders for Design Services, inventory obsolescence, or incurred manufacturing costs as a result of authorized changes.
3.1.4 With exception, Company will bear the cost of all procurement, design, and engineering estimates approved by Customer until such time as Customer terminates, breaches, and/or renegotiates this Agreement.
3.1.5 If Customer terminates, breaches, and/or renegotiates this Agreement, Customer agrees to accelerated payment of all procurement, design and engineering estimated fees approved by Customer and incurred by Company associated with all Procurement, Design & Engineering Changes –- including all approved fees accrued from previous and non-related Products during the term of this Agreement.
3.2 Procurement, Design, & Engineering Changes Proposed by Company
Company may make recommendations that would reduce material costs and/or improve quality/reliability.
Upon Company’s recommendations:
3.2.1 Customer will evaluate such recommendations and Company will provide a quote for estimated services to incorporate such recommendations into the Product as appropriate. Customer and Company may negotiate the terms for services including but not limited to sharing the cost savings as a result of the changes. Company will not make changes to product procurement, design, or manufacturing processes which affect the form, fit, and function or reliability of the Product without prior written authorization from Customer.
3.2.2 Once changes have been implemented, Customer must provide field testing data with their signed approval.
3.2.3 If changes affect Company’s ability to meet the Delivery Schedule based on existing purchase orders, Company and Customer must mutually agree upon the schedule change and this must be followed by a revised purchase order.
3.3 New Product Development
Customer may retain the design & engineering services of Company to develop new products. Upon requests for engineering services for new product development:
3.3.1 Customer will provide Company with a product specification in written form. Prior to commencing engineering activities for new product development, both parties will approve the product specification in writing.
3.3.2 Company will provide a quote for estimated design and development services based on the product specification including costs and schedule in written form.
3.3.3 All new products will include an initial concept phase, prototype phase and engineering phase with Customer providing written authorization for release to manufacturing.
3.3.4 With exception, Company will bear the cost of all design and engineering estimates approved by Customer until such time as Customer terminates, breaches, and/or renegotiates this Agreement.
3.3.4 If Customer terminates, breaches, and/or renegotiates this Agreement, Customer agrees to accelerated payment of all design and engineering fees approved by Customer and incurred by Company which are associated with all New Product development including all approved fees accrued from previous and non-related Products during the term of this Agreement.
3.4 Production Units.
Company will conduct a Procurement or Manufacturing Release for the Customer products and upon Customer’s written authorization to begin production:
3.4.1 Company will provide to Customer all applicable product documentation for written sign off and approval prior to the subsequent procurement or production of product quantities.
3.4.2 Customer will provide Company written notice of its approval or disapproval of the product documentation for each Customer Product within 10 days after Customer’s receipt of all the items required to be delivered to Customer pursuant to this Section.
3.4.3 If the first product documentation for a Customer Product is disapproved by Customer, Company will remedy the reasons for Customer’s disapproval in a timely fashion consistent with milestones specified in the Delivery Schedule.
3.4.4 Subject to Customer approval of the product documentation, Company will release the Customer Product to production.
3.5 Repair Services.
Company will provide repair services to Customer for both warranty and non-warranty repairs on all Products manufactured by Company. For all Product procured from third-parties, Company will make best efforts to pass through any warranty offer by Supplier to the benefit of the Customer. All warranty repairs will be processed in accordance with Articles 9.2 and 9.3 or as offered by third-party supplies and manufacturers.
However, non-warranty repairs will be processed as follows:
3.5.1 All non-warranty repairs will be processed pursuant to the Company RMA process upon notification by Customer. Company will quote and charge a pre- determined evaluation fee for non-warranty units. Upon authorization from Customer to repair the product, the pre-determined fee will be applied toward the actual repair cost.
3.5.2 An estimate of repairs will be submitted to Customer via e-mail. E-mail authorization from Customer is required prior to any repairs being completed by Company. Customer will be notified that a repaired unit is completed and ready for shipment to Customer.
3.5.3 Payment terms for repairs will be the same as stated in Article 8. All shipping/logistics associated with non-warranty repairs will be paid for by Customer.
4.1 General. Each party will maintain all right, title and interest in Pre-Existing Intellectual Property, subject to any licenses granted in this Agreement. Except as otherwise provided in Section 4.2 and Section 4.4 below, ownership of Intellectual Property Rights in any intellectual property developed under this Agreement will be owned by the party or parties whose employees, agents or contractors conceive and either first reduce to practice, author or otherwise create such intellectual property. Neither party will have any duty to account to the other for profits with respect to property jointly owned under this Agreement, and Company and Customer will mutually agree on whether and how to pursue patent protection for any such joint inventions.
4.2 Customer Rights.
4.2.1 Subject to Company’s rights specified in Section 4.3.1 below, Customer will own all right, title and interest, including all Intellectual Property Rights, in and to the Requirements and the Deliverables including the Technical Product Information. Company agrees to assign to Customer any Intellectual Property Rights it may have in the Deliverables.
4.2.2 During the Term plus any period of support that may survive termination of this Agreement, Company agrees to inform Customer promptly of any new product and/or designs developed in connection with its performance under this Agreement (collectively, “Developments”). Customer will own all Intellectual Property Rights in Developments that are the result of product changes paid for and owned by Customer. Company will execute any necessary documents and will otherwise assist Customer at Customer’s expense, as reasonably requested, to protect such Intellectual Property Rights.
4.3 Company Rights.
4.3.1 Company will retain all right, title and interest, including all Intellectual Property Rights, in and to product or manufacturing process improvements made at Company’s expense and Company’s Technical Manufacturing Information for the Products, subject Customer’s rights in Developments under Section 4.2 above and Customer’s mark rights under Section 4.4 below.
4.2.2 Any Technical Manufacturing Information developed for the purpose of manufacturing Customer’s Products will be used solely for the design, development, testing and manufacturing of such products, which may only be sold to Customer. Customer agrees to maintain the confidentiality of Company’s Technical Manufacturing Information under the terms specified in Article 13 below.
4.3.2 Company reserves the right to charge Customer for all design & engineering services in connection with modifications to any pre-existing intellectual property as well as new Products designed by Company on behalf of Customer. So long as Customer performs against the entirety of this Agreement, Company Agrees to bear the cost of these services. These services will be quoted at the Company’s standard hourly rate.
4.3.2 If Customer terminates, breaches, and/or renegotiates this Agreement, Customer agrees to accelerated payment of all design & engineering fees approved by Customer and incurred by Company -including all approved fees accrued from current, previous, and non-related Products during the term of this Agreement.
4.3.3 Customer grants to Company, under Customer’s Intellectual Property Rights, a non-exclusive, non-transferable, worldwide, royalty-free license to use the Requirements to design, develop, test, and manufacture the Deliverables solely for the term of this Agreement. Company agrees to maintain the confidentiality of the Requirements under the terms specified in Article 13 below.
4.3.4 Customer grants to Company the right to use any marketing and/or promotional content produced for/by Customer relating to Product provided under this agreement for Company promotional purposes. Customer grants to Company the right to publish their logo and company name on Company website and various marketing content.
4.4 Trademark Usage.
Nothing in this Agreement implies the grant of any license from one party to the other to use any Marks. All Marks owned and protected by Customer, including all pre-existing trademarks and copyrights, will remain the sole property of Customer, and Customer will be the sole owner of all rights in connection therewith. Notwithstanding the foregoing, Customer grants to Company the non-exclusive, non-transferrable limited right to reproduce any designated and approved Customer Marks on Customer Products solely in connection with Company performing its obligations under this Agreement.
5. Tooling, Non-Recurring Expenses, Pre-Existing Intellectual Property
5.1 Tooling and Non-Recurring Expenses. Customer shall pay for all pre-approved tooling. In certain circumstances it may become necessary for Customer to obtain and consign to Company any Product specific tooling or equipment and other reasonably necessary non-recurring expenses, to be set forth in Company’s quotation.
5.2 Pre-Existing Intellectual Property. Any pre-existing intellectual property provided to Company by Customer is the property of Customer and licensed to Company non- exclusively for use solely to perform its obligations under this Agreement. Such pre- existing intellectual property may not be transferred or sublicensed.
6. Orders, Material Procurement
6.1 Purchase Orders. Customer will issue written Purchase Order(s) in a timely manner, to cover a minimum two (2) month period.
6.2 Order Acknowledgement. Purchase orders shall normally be deemed accepted by Company, provided however that Company may reject any order that does not conform to the lead-time, flexibility or cancellation terms of this Agreement based on commercially reasonable standards. Company shall notify Customer of rejection of any purchase order within five (5) working days of receipt of such order.
6.3 Material Procurement. Purchase Orders issued by Company and approved by Customer in conformance to this Agreement will constitute authorization for Company to procure, using standard purchasing practices, the components, subassemblies, materials and supplies necessary for the manufacture of Products (“Inventory”) covered by such Purchase Orders.
6.4 Long Lead Time Components. As Customer’s strategic materials management partner, Company may be required to purchase Long Lead Time Components in order to achieve the schedule flexibility requirements identified in Section 7.3. For purposes of this Agreement, “Long Lead Time Components” shall mean components, subassemblies, materials and supplies with lead times greater than forty (40) days. During the term of this Agreement, if any lead times for components, subassemblies, materials, or supplies exceed forty (40) days due to changes in market conditions, Company may reasonably purchase minimum lot sizes from suppliers (“Minimum Order Inventory”), even if greater than the amount necessary to meet purchase orders, in order to ensure the schedule flexibility requirements identified in Section 7.3 are achieved. Company will notify Customer quarterly in writing if lead times for any components, subassemblies, materials, or supplies exceed forty (40) days and will quantify how much additional cancellation liability Customer will incur above and beyond the cancellation liability terms defined in Section 7.3. If lead times for components, subassemblies, materials, or supplies do not exceed ninety (90) days during the term of this Agreement, or any extensions thereof, Company and Customer agree to abide by the reschedule flexibility and cancellation liability terms defined in Section 7.3.
7. Shipments, Schedule Changes, Cancellation
7.1 Shipment Requirements. All Products delivered pursuant to the terms of this Agreement and shall be suitably packed for shipment in accordance with Customer’s Specifications, marked for shipment to Customer’s destination specified in the applicable purchase order and delivered to a carrier or forwarding agent. Risk of loss and title will not pass to Customer until after the time the Products have been delivered to Customer and Customer has inspected the Products and determined they have not been damages in transit. All freight, insurance, and other shipping expenses will be paid by Customer.
7.2 Meeting Delivery Dates. Company will make best effort to achieve 100% on-time delivery performance to the designated shipping address.
7.3 Quantity Increases and Shipment Schedule Changes. Customer may postpone, decrease, increase or cancel any Order by notice to Company at any time prior to the Delivery Date. If Customer postpones, decreases, or cancels an Order after Company has accepted the order and commenced production (including parts procurement) Company will be entitled to be reimbursed by Customer for the full purchase price of any units produced and in production as well as the actual costs of any other preapproved materials and/or inventory incurred by Company as a direct result of such postponement, decrease or cancellation that are not recoverable by the shipment of the affected Products or associated raw materials to other purchasers.
8. Prices and Payment Terms
8.1 Customer Product Prices. The price for Products is set forth in Purchase Orders, Invoices, Order Acknowledgements, and other correspondence between Customer and Company and may be changed from time to time through purchase orders issued by Customer and accepted by Company. All pricing changes must be mutually agreed to by both parties.
8.2 Payment Procedure. Invoices will be e-mailed in the form of a pdf file. Payment for Customer Products will pre-paid. Payments for invoices will be in the form of Credit Card, Company Check or Wire/ACH. Except as otherwise provided in this Agreement, associated freight expenses and duties will be paid directly by Customer or if not done so by customer will be considered prepaid and add. Customer will not be liable for any costs related to or payments for unordered, Nonconforming Products or Products which are damaged before they are received by Customer.
8.3 Sales Taxes and Duties. Prices are exclusive of all taxes or duties after delivery to the designated destination (other than taxes levied on Company’s income) that Company may be required to collect or pay upon shipment of the Customer Products. Any such taxes or duties must appear as a separate item on Company’s invoice. Customer agrees to pay such taxes or duties unless Customer is exempt from such taxes or duties. Where applicable, Customer will provide Company with an exemption resale certificate.
8.4 Additional Costs. Customer is responsible for any expediting charges reasonably necessary because of a change in Customer’s Requirements, if such changes do not conform to established flexibility terms defined in Section 7 which charges are pre- approved.
9. Product Acceptance and Warranties.
9.1 Product Acceptance. Customer agrees that the product is deemed acceptable if Customer has not rejected the product within five (5) business days after receipt by Customer.
9.2 Non-Complying Product. Company is expected to deliver 100% quality Product in conformance to all Products’ specifications, workmanship standards and quality requirements. As Customer’s strategic quality partner, Company is expected to institute appropriate quality controls at the factory to stop any defective product from shipping to Customer. Customer’s intent is not to inspect each shipment coming from Company, however, Customer reserves the right to audit Company’s facilities and conduct source inspection. Customer and Company will work together to jointly determine if Product is defective. Customer may return defective Products (within 14 business days of receipt), freight pre-paid, after obtaining a return material authorization number (RMA#) from Company to be displayed on the shipping container and completing the RMA form, by Company. Company will not unreasonably withhold such return material authorization numbers. Rejected Products and defective Products will be inspected and, if Company is at-fault, will be promptly repaired and replaced at no cost to Customer and returned freight pre-paid.
These terms do not apply to (a) materials consigned or supplied by Customer to Company; (b) defects resulting from Customer’s design of the Product; (c) Product that has been abused, damaged, altered or misused by any person or entity after title passes to Customer. With respect to first articles, prototypes, pre-production units, test units or other similar products, Company makes no representations or warranties whatsoever.
Notwithstanding anything else in this Agreement, Company assumes no liability for or obligation related to the performance, accuracy, specifications, failure to meet specifications or defects of or due to tooling, designs or instructions produced or supplied by Customer and Customer shall be liable for costs or expenses incurred by Company related thereto. Upon any failure of a Product to comply with the above terms, Company’s sole obligation, and Customer’s sole remedy, is for Company, to promptly repair or replace such unit and return it to Customer freight pre-paid at no additional cost to Customer.
COMPANY MAKES NO OTHER WARRANTIES OR CONDITIONS ON THE PRODUCTS, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR COMMUNICATION WITH CUSTOMER, AND COMPANY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OR CONDITION OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10.1 If either party fails to meet any one or more of the terms and conditions as stated in this Agreement, Company and Customer agree to negotiate in good faith to resolve such default. If the defaulting party fails to cure such default or submit an acceptable written plan to resolve such default within thirty (30) days following notice of default, the non- defaulting party shall have the right to terminate this Agreement by furnishing the defaulting party with thirty (30) days written notice of termination.
10.2 This Agreement shall immediately terminate should either party; (i) become insolvent; (ii) enter into or file a petition, arraignment or proceeding seeking an order for relief under the bankruptcy laws of its respective jurisdiction; (iii) enter into a receivership of any of its assets; or (iv) enter into a dissolution of liquidation of its assets or an assignment for the benefit of its creditors.
10.3 Either Company or Customer may terminate this Agreement without cause at any time by giving ninety (90) days advance written notice to the other party. In the event of termination without cause, Company will continue shipment of all orders accepted prior to the date of notice and Customer will remain obligated to accept and pay for such deliveries at the current pricing.
10.4 Subject to the terms and conditions of this Agreement, upon termination of this Agreement Customer agrees to reimburse Company for all products produced as well as all preapproved inventory purchased or manufactured, and all charges or costs Company may have reasonably incurred in the course of performance of this Agreement including all accelerated and previously accrued design and engineering fees absorbed by Company.
11. Liability Limitation
11.1 Patents, Copyrights, Trade Secrets, Other Proprietary Rights. Customer shall defend, indemnify and hold harmless Company from all costs, judgments and attorney’s fees arising from any claim that Company’s manufacture of the Products under this Agreement directly infringes any third-party patents, patent rights, copyrights or trade secrets to the extend such claim relates to a Product designed by Customer. Company shall promptly notify Customer in writing of the initiation of any such claims, give Customer sole control of any defense or settlement, and provide Customer reasonable information and assistance in resolving such claim. Company shall defend, indemnify and hold harmless Customer from all costs, judgments and attorney’s fees arising from any claim that Company’s manufacture of the Products under this Agreement directly infringes any third-party patents, patent rights, copyrights or trade secrets to the extend such claim relates to a Product designed by Company. Customer shall promptly notify Company in writing of the initiation of any such claims, give Company sole control of any defense or settlement, and provide Company reasonable information and assistance in resolving such claim.
THE FOREGOING STATES THE ENTIRE LIABILITY OF CUSTOMER CONCERNING INFRINGEMENT OF PATENT, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS.
11.2 Product Liability. Customer agrees that, if notified promptly in writing and given sole control of the defense and all related settlement negotiations, it will defend Company from any claim or action and will hold Company harmless from any third-party loss, damage or injury, including death, which arises from any alleged defect of Customer’s design of any Products. Similarly, Company agrees that, if notified promptly in writing and given sole control of the defense and all related settlement negotiations, it will defend Customer from any claim or action and will hold Customer harmless from any third-party loss, damage, or injury, including death, which arises from any alleged workmanship defect of any Products. Company will not be responsible for any action relating to a any previous designs and engineering provided to Company by Customer.
11.3 NO OTHER LIABILITY. EXCEPT FOR THE EXPRESS WARRANTIES CREATED UNDER THIS AGREEMENT AND EXCEPT AS SET FORTH OTHERWISE IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT OR THE SALE OF PRODUCTS, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING THE POSSIBILITY OF NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF THE PARTY HAS BEEN WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE, AND EVEN IF ANY OF THE LIMITED REMEDIES IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
12. Force Majeure
12.1 If the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than a payment obligation) due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause beyond the reasonable control of the party invoking this section, and if such party shall have used its commercially reasonable efforts to mitigate its effects, such party shall give prompt written notice to the other party, its performance shall be excused, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences. Regardless of the excuse of Force Majeure, if such party is not able to perform within ninety (90) days after such event, the other party may terminate the Agreement. Termination of this Agreement shall not affect the obligations of either party which exist as of the date of termination.
13.1 Confidential Information. In connection with the performance of this Agreement, the parties may exchange confidential information, during the term of the Agreement. All confidential information (and all rights therein, including but not limited to trade secrets) shall remain the property of the disclosing party. These obligations shall not apply to information which is (i) publicly known at the time of disclosure or becomes known through no fault of the recipient, (ii) known to recipient at the time of disclosure through no wrongful act, (iii) received by recipient from a third party without restrictions similar to those in this section or (iv) independently developed by recipient. Neither party may transfer or disclose confidential information or assign their rights or obligations under this section without prior written consent of the disclosing party. The parties may use confidential information of the disclosing party only for the purposes of carrying out this Agreement. Upon termination of this Agreement all confidential information whether in paper or electronic form, shall be collected and returned to the disclosing party.
13.2 Independent Contractors. Neither party shall, for any purpose, be deemed to be an agent of the other party and the relationship between the parties shall only be that of independent contractors. Neither party shall have any right or authority to assume to create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
13.3 Successors, Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assignees and legal representatives. Neither party shall have the right to assign or otherwise transfer its rights or obligations under this Agreement except with the prior written consent of the other party, not to be unreasonably withheld.
13.4 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the transactions contemplated hereby and supersedes all prior agreements and understandings between the parties relating to such transactions. Both parties shall hold the existence and terms of this Agreement confidential, unless it obtains the other party’s express written consent otherwise. In all respects, this Agreement shall govern, and any other documents including, without limitation, preprinted terms and conditions on Customer’s purchase orders and Company’s acknowledgements shall be of no effect.
13.5 Attorney’s Fees. In the event of a default under this Agreement, the defaulting party shall pay the reasonable attorney’s fees and court costs incurred by the non-defaulting party in enforcing this agreement.
13.6 Amendments. This Amendment may be amended only by written consent of both parties.
13.7 Governing Law. This Agreement will be governed in all respects by the laws of Florida without reference to any choice of laws provisions.
BY ENGAGING COMPANY AND/OR PURCHASING ITS PRODUCTS AND SERVICES, CUSTOMER AGREES TO THE ABOVE IN ITS ENTIRETY EXCEPT WHERE SPECIFICALLY AGREED TO ELSEWHERE.