THIS AGREEMENT IS A MASTER AGREEMENT THAT SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH CONFLUX WILL PROVIDE IT CONSULTING FOR CLIENT AND UNDER WHICH CLIENT IS ENTITLED TO PURCHASE THE SAME FROM CONFLUX.
SCOPE AND STATEMENT OF WORK
Statements of Work. All Services to be performed by Conflux (the “Services”), and all deliverables (the “Deliverables”) to be developed hereunder, will be documented in an agreement which will become effective when signed by an authorized representative of each party (each referred to as a “Statement of Work” or “SOW”). Each Statement of Work will include, at a minimum, a description of the Services to be provided; a description of any expected Deliverables; and the applicable fee structure. Each Statement of Work will be incorporated into this Agreement by reference. In the event of a direct conflict between this Agreement and any Statement of Work, the terms of the Statement of Work will prevail.
Change Orders. Changes to a Statement of Work may only be made by written change orders (“Change Orders”), signed by an authorized representative of each party, setting forth the nature of the change and the specific amendment to the applicable portions of the Statement of Work including, among other things, the timetable and fees and whether such timetable and fees are estimated or firm.
RIGHTS IN MATERIALS
Ownership. Except as expressly set forth below, and except as may be otherwise set forth in any applicable Statement of Work, Client will own all right, title and interest, including all intellectual property rights, in the Deliverables. Conflux hereby grants and assigns to Client sole and exclusive ownership of any and all Deliverables, including, all intellectual property rights (including copyrights) throughout the world.
Conflux Materials. Conflux will remain the sole and exclusive owner of all right, title and interest in and to the Conflux Materials, including all intellectual property rights therein. Client will have no right or license to, and will not, use any Conflux Materials except solely as is consistent with the license granted below. “Conflux Materials” means all documents, data, know-how, methodologies, processes, trade secrets, intellectual property, software and other materials, including computer programs (including source code), reports, and specifications, that are provided by or used by Conflux in connection with performing the Services or included in the Deliverables provided to Client under this Agreement or any Statement of Work, and in each case that were developed by or acquired by Conflux either prior to the commencement of or independently of this Agreement. Conflux Materials will be deemed Conflux’s Confidential Information, as such term is defined below.
Approved Third-Party Materials. “Third-Party Materials” means any materials and information, in any form or medium, including any documents, data, content, specifications, products, equipment or components of or relating to the Deliverables that are not proprietary to Conflux. Conflux will not include in any Deliverable any Third-Party Materials, other than Third-Party Materials expressly described in the applicable Statement of Work (“Approved Third-Party Materials”). Ownership of all Approved Third-Party Materials, and all intellectual property rights therein, is and will remain with the respective owners thereof, subject to any express licenses or sublicenses granted to Client herein.
Client Materials. “Client Materials” means all materials and information, including documents, data, know-how, ideas, methodologies, specifications, software, content and technology, in any form or media, directly or indirectly provided or made available to Conflux by or on behalf of Client in connection with this Agreement. Client and its licensors are and will remain the sole and exclusive owners of all right, title and interest in and to the Client Materials, including all intellectual property rights therein. Conflux will have no right or license to, and will not, use any Client Materials except as is necessary to provide Services or Deliverables under this Agreement or any Statement of Work. Upon written request, Conflux will return Client Materials to Client.
Conflux Materials License. Conflux hereby grants to Client the limited, royalty-free, non-exclusive right and license to Conflux Materials included in any Services and Deliverables, solely as is necessary to allow Client to use and otherwise exploit the Services and Deliverables perpetually throughout the universe, without incurring any additional fees or costs (other than the fees and reimbursable expenses set forth on a SOW). The term of such license will commence upon Conflux’s delivery to Client and Client’s payment to Conflux for the Services and Deliverables consistent with any Statement of Work. Subject to the foregoing license, Conflux reserves all rights in the Conflux Materials.
Third-Party Materials License. Ownership of all Third-Party Materials, and all intellectual property rights therein, is and will remain with the respective owners thereof, subject to any express licenses or sublicenses granted to Client pursuant to or in accordance with this Agreement or any SOW. Any Third-Party Materials are provided pursuant to the terms and conditions of the applicable third-party license agreement.
Client Materials License. Client hereby grants to Conflux the limited, royalty-free, non-exclusive right and license to Client Materials solely as necessary to incorporate such Client Materials into, or otherwise use such Client Materials in connection with creating, the Services or Deliverables. The term of such license will commence upon Client’s delivery of the Client Materials to Conflux, and will terminate upon Client’s payment for the Services or Deliverables to which the Client Materials relate. Subject to the foregoing license, Client reserves all rights in the Client Materials. Client Materials will be deemed Client’s Confidential Information.
Further Assurances. Conflux agrees to assist Client, at Client’s expense, to register and enforce all patents, copyrights and other rights and protection relating to its rights in the Deliverables in any and all countries. Conflux agrees to execute and deliver all additional documents reasonably requested by Client in order to perfect, register, or enforce any such rights or that Client may deem reasonably necessary to give effect to this Agreement.
Confidential Information. The parties acknowledge that during the term of this Agreement, the parties may disclose their Confidential Information to each other. “Confidential Information” will include all non-public information of either party, whether or not marked as confidential or proprietary, including, without limitation, customer lists, customer information, product information, supplier lists, financial information, contractual information, logos, designs, pricing information, internal business organization information, marketing, business and expansion plans and all other business documents, notes, records, research and development, intellectual property, technologies, processes, procedures, programs, systems, products and methods, and all written, oral or electronic information concerning any of the preceding. “Confidential Information” will not, however, include information that: (i) is or becomes generally known or available by publication, or otherwise through no fault of the receiving party; (ii) is lawfully known by the receiving party at the time of disclosure and is not subject to restriction; (iii) is independently developed by the receiving party; or (iv) is lawfully obtained from a third party that rightfully makes such disclosure without breach of a duty of confidentiality.
Nonuse and Nondisclosure. Each party agrees not to use any Confidential Information of the other party, for any purpose other than in connection with the performance of its obligations under this Agreement. Each party will limit the duplication and use of the other party’s Confidential Information to the exercise of its rights and performance of its obligations under this Agreement. Each party agrees to limit disclosure of any Confidential Information of the other party to those employees, agents, and subcontractors of the receiving party who are required to have the information in order perform obligations under this Agreement. Neither party will reverse engineer, disassemble, or decompile any software or other tangible objects which are provided as the other party’s Confidential Information. Each party will be responsible for any use or disclosure of the other party’s Confidential Information by its employees, agents, and subcontractors that is not expressly permitted by this Agreement. To the extent that a receiving party is required by law to disclose the disclosing party’s Confidential Information, the receiving party may disclose such information provided it gives the disclosing party prompt written notice of such requirement prior to such disclosure and, if requested by the disclosing party, assists in obtaining an order protecting the information from public disclosure.
Maintenance of Confidentiality. Each party agrees to take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party will take at least those measures that it takes to protect its own Confidential Information and will ensure that its employees, agents, and independent contractors who have access to Confidential Information of the other party, are subject to nondisclosure restrictions at least as restrictive as the provisions hereof prior to any disclosure of Confidential Information to any such employee, agent, independent contractor, or client. Each party will reproduce the other party’s proprietary rights notices on any copies of the other party’s Confidential Information in substantially the same manner in which such notices were set forth in or on the original. Each party will immediately notify the other party in the event of any unauthorized use or disclosure of the Confidential Information.
Return of Materials. All documents and other tangible objects containing or representing the disclosing party’s Confidential Information and all copies thereof which are in the possession of the receiving party, will be and remain the property of the disclosing party. Upon expiration or termination of this Agreement or following the disclosing party’s written request, receiving party will, at the disclosing party’s direction, either promptly destroy or return all such material to the disclosing party. At the disclosing party’s option, the receiving party will provide written certification of its compliance with this paragraph.
Non-Competition; Non-Solicitation. Because Conflux is in a competitive industry, and because Conflux invests significant resources into business and project development, Client expressly agrees that it will not, during the period commencing on the Effective Date and continuing for twelve (12) months following the termination of the later of this Agreement or the final Statement of Work in effect under this Agreement: (i) solicit or interfere with the relationship between Conflux or any of its customers, suppliers, contractors, subcontractors, licensors, or any other material relationships with Conflux; or (ii) hire or solicit any employee, former employee, subcontractor, or former subcontractor of Conflux (collectively, “Conflux Contributors”), or in any way encourage any Conflux Contributors to leave his, her or its employment with Conflux or terminate his, her, or its independent contractor agreement with Conflux. Client expressly agrees and acknowledges that: (i) the restrictions in this Section are commercially reasonable; and (ii) Conflux would not have entered into this Agreement or any Statement of Work with Client had the parties not agreed to enter into this Agreement having this Section. In the event Client wishes to buy-out Conflux’s rights under this Section, Conflux, in its sole discretion, will set a commercially reasonable price for such buy-out, consistent with then market terms and values, including additional costs Conflux would likely incur as a result of replacing the Conflux Contributor(s). The identity and contact information of Conflux Contributors constitute trade secrets of Conflux and will be considered Conflux Materials.
Consistent Agreements. This Section is intended to be read consistently with any other agreements entered into between the parties, including, but not limited to, any Non-Disclosure, Non-Competition, and Non-Solicitation or other similar protective agreements. Nothing herein is intended to supersede, abrogate or otherwise amend such agreements, and no such agreement entered into after the Effective Date of this Agreement will supersede, abrogate, or amend this Agreement unless expressly stated on the face of such agreement and express reference to this Agreement is included.
FEES AND PAYMENTS
Fees. Subject to all terms and conditions set forth in this Section, and Conflux’s substantial performance of its obligations under any Statement of Work, Client will timely pay the fees as set forth in each applicable Statement of Work.
Expenses. Unless otherwise specified in this Agreement or in an applicable Statement of Work, Client will reimburse Conflux for its reasonable out-of-pocket expenses incurred by Conflux in connection with this Agreement, including, but not limited to, travel, lodging, meals, long-distance telephone, audio and web conferencing, postage, and express mail expenses. The Client must approve travel and estimated travel costs in advance in writing that exceed an individual amount of $500.
Taxes. Client is solely responsible for payment of any taxes (including sales or use taxes, intangible taxes, and property taxes) resulting from Client’s acceptance of Services or Deliverables performed under this Agreement and from possession and use of the Deliverables, exclusive of taxes based on Conflux’s income. Conflux reserves the right to demand Client’s payment of any such tax amounts directly to Conflux for remittance to the appropriate authority. Client agrees to hold harmless Conflux from all claims and liability arising from Client’s failure to report or pay such taxes.
Invoices. Unless otherwise agreed by the parties in an applicable Statement of Work, invoices for services and reimbursable expenses will be submitted, at Conflux’s option, either consistent with the schedule set forth in the applicable Statement of Work, or on a monthly basis for Services provided on a time and materials basis. Invoices will be payable within thirty (30) days of the invoice date. All payments will be made in U.S. dollars.
Disputed Invoices. Client will have ten (10) days from receipt of invoice to advise Conflux in writing of any disputed charge appearing on an invoice, the portion of which Client may withhold provided that it disputes such charge in good faith. Client will be responsible for the payment in full of any undisputed amounts, whether a portion of a disputed invoice or any other invoices received until the dispute is resolved. Client agrees that time is of the essence in the resolution of disputes and agrees to work with Conflux to resolve disputes in a timely fashion.
Changes in Fees. Standard hourly rates are subject to change from time to time upon thirty (30) days prior written notice to Client, provided that Conflux will not increase rates more than one time in a single calendar year and provided that any such fee increase will not exceed five percent (5%) over the prior year’s fees. Any fee increases will be prospective only and will not be applicable to any work performed prior to the rate change.
COOPERATION AND CLIENT OBLIGATIONS
Cooperation. Both Conflux and Client acknowledge and agree that successful completion of the Services and Deliverables will require good faith cooperation and a dynamic iterative process. In addition to this mutual good faith cooperative obligation, Client shall:
TERM AND TERMINATION
Term of Agreement. This Agreement will be effective upon the date specified at the beginning of this Agreement, and will remain in effect unless otherwise terminated as provided herein; provided, however, this Agreement will continue to remain in effect with respect to any Statements of Work already issued hereunder at the time of such termination, until such Statements of Work are themselves terminated and performance thereunder is completed.
Effect of Expiration or Termination. Upon any expiration or termination of any Statement of Work, Conflux will, upon receipt of payment for all work completed prior to the date of termination: (A) with respect to termination of a Statement of Work, promptly deliver to Client all Deliverables generated by Conflux under such Statement of Work (whether complete or incomplete); (B) provide reasonable cooperation and assistance to Client upon Client’s written request and at Client’s expense in transitioning the Services to an alternate provider; and (C) on a pro rata basis, repay all amounts, if any, paid in advance for any Services or Deliverables that have not been provided. For any termination, Client will remain obligated to pay fees for all Services and Deliverables received before the effective date of such termination, which fees will be prorated in the event payment is fixed fee. No expiration or termination of this Agreement will affect Client’s rights in any of the Deliverables as long as payment is made for the same.
Survival. The provisions of these Terms and Conditions will survive termination of the Agreement.
DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SECTION, CONFLUX DISCLAIMS ALL WARRANTIES IN ANY SERVICES OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT OR ANY STATEMENT OF WORK TO THE MAXIMUM EXTENT PERMITTED BY LAW, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Limited Warranty. Conflux warrants for a period of thirty (30) days following delivery of any Deliverable, as delivered to Client, or so long as Client has purchased support services under any Statement of Work, whichever is longer (the “Warranty Period”), that the Deliverable, as delivered to Client, will be in good working order and will conform substantially with the documentation and any written specifications that have been mutually agreed to in writing by the parties. Notwithstanding anything in this Section to the contrary, there shall be no warranty of any kind whatsoever on any Third-Party Materials or any Services provided hereunder.
In addition, Conflux represents, warrants, and covenants that:
It will perform all services provided under this Agreement in a timely, workmanlike manner consistent with industry standards reasonably applicable to the performance of such service and perform such services in an efficient cost-effective manner;
It has all rights, titles, licenses, permissions and approvals necessary to perform its obligations (including the Services) under this Agreement and to provide the Deliverables contemplated herein;
Additional Client Representations, Warranties and Covenants. Client represents, warrants and covenants to Conflux that Client owns or otherwise has and will have the necessary rights and consents in and relating to the Client Materials, so that, as received by Conflux and used in accordance with this Agreement, to Client’s knowledge, the Client Materials do not, and will not, infringe any registered or issued patent, copyright, or trademark of any third party arising under the laws of the United States or violate any applicable laws.
LIMITATION ON LIABILITY.
In no event will Conflux be liable for incidental, indirect, special, consequential damages, or exemplary damages arising out of or relating to this Agreement or any Statement of Work, even if Conflux is informed in advance of the possibility of such damages occurring. The cumulative liability of Conflux under this Agreement or any Statement of Work, connected with, or in any way arising from this Agreement, regardless of the form of action, whether in contract or tort, including claims for negligence, strict liability, or other claims, will not exceed the total amount of all fees paid to Conflux hereunder during the six (6) month period preceding the claim.
Subject to the remainder of this Section, Conflux will defend, indemnify, and hold Client, its directors, shareholders, officers, employees, and agents (collectively, in this Section referred to as the “Client Indemnified Party”) from any and all costs, losses, damages, expenses (including reasonable legal fees), liabilities, claims, and demands arising or resulting from a claim that any of the Services or Deliverables infringe a third-party United States registered or issued patent, copyright, or trademark (“Infringement Claim”), provided that Client Indemnified Party will (a) give Conflux prompt written notice of any such claims; (b) give Conflux complete and sole authority to settle or defend such claims, provided, that Client Indemnified Party will have the right to participate in such defense and negotiations using counsel at its own expense, and Conflux will obtain the Client Indemnified Party’s consent, which will not be unreasonably withheld, prior to entering into a settlement or compromise or consenting to any injunctive relief with respect to such claim or action; and (c) reasonably cooperate with Conflux in the defense and/or settlement thereof.
Should any of the Deliverables that are licensed hereunder become, or in Conflux’s opinion be likely to become, the subject of such an Infringement Claim, Conflux will, at its option and expense, either (a) procure for Client the right to make continued use of the Deliverables, or (b) replace or modify such so that it becomes non-infringing. If neither option is available, Conflux will refund to Client an equitable prorated amount of funds received.
Conflux will have no obligation for Infringement Claims to the extent such claims result from any combination, operation, or use of the Deliverables with any programs or equipment not supplied or authorized in writing by Conflux. Conflux will have no obligation for claims of infringement to the extent such claims result from (i) any modification of the Deliverables by a party other than Conflux, unless such modification was authorized in writing by the Conflux, if such infringement would have been avoided in the absence of such modifications; or (ii) Client’s failure, within a reasonable time frame, to implement any replacement or modification of Deliverables provided by Conflux. In addition, in no event will Conflux be responsible to Client to the extent such claims are based on Client’s design specifications, Client Materials, or software or other requirements provided by the Client to Conflux.
Marketing. Conflux may use Client’s name in its resumes, client lists, case studies, or in any other promotional information including, but not limited to, press releases, brochures, reports, letters, white papers, and electronic media such as email. Client may revoke this marketing approval at any time in the event Client reasonably determines that its affiliation with Conflux marketing materials adversely impacts Client.
Transfer. Except as provided herein, this Agreement may not be assigned by Client without the written permission of Conflux except as part of a corporate reorganization, consolidation, merger or sale of substantially all assets or all stock of the Client, provided that Client will provide prompt written notice of such assignment to Conflux and further provided that Client will remain wholly obligated and primarily responsible for the faithful performance of all of the obligations of Client under this Agreement. Conflux may subcontract the performance of any of its duties or obligations under this Agreement to any person. In all cases, Conflux shall be responsible and liable for the acts and omissions of each subcontractor to the same extent as if such acts or omissions were by Conflux and shall be responsible for all fees and expenses payable to any subcontractor. This Agreement will inure to the benefit of and be binding upon the successors and permitted assigns of the parties.
Notices. Any notice or other communication required or permitted to be given hereunder will be given in writing and delivered in person, or by U.S. Mail, via confirmed facsimile or email or delivered by recognized courier service, and will be deemed effective upon receipt. Either party may from time to time change its address or authorized representatives by giving the other party notice of the change in accordance with this section.
Entire Agreement. This Agreement (including any Exhibits, Schedules, and Statements of Work attached hereto or executed hereunder) constitutes the complete and exclusive statement of the agreement between Conflux and Client as to the subject matter hereof, and this Agreement supersedes and renders void and inoperable all prior or contemporaneous proposals, agreements or other communications, written or oral, between the parties regarding such subject matter.
Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but which together will constitute one and the same instrument. If this Agreement is executed in counterparts, no signatory hereto will be bound until both the parties have duly executed or caused to be duly executed a counterpart of this Agreement.
Modification. Except as may otherwise be permitted herein, this Agreement may only be modified or amended by an agreement, in writing, signed by an authorized representative of each of the parties.
Severability. If any provisions of this Agreement are declared by a court to be invalid under any applicable statute or rule of law, such provisions are, to that extent, deemed omitted, but the remainder of this Agreement will continue to be binding upon the parties hereto.
No Waiver. Failure of either party to exercise its rights under this Agreement will not be construed as a waiver of that party’s rights, including without limitation the right to seek remedies arising from past, present or future breach by the other party.
Governing Law. This Agreement will be construed and governed in accordance with the substantive laws of the State of Ohio. Any action brought by either party arising out of or related to this Agreement will be brought in the state or federal courts located in Cincinnati, Ohio. The parties irrevocably consent to the jurisdiction to the courts referenced above, and such courts will retain exclusive jurisdiction over the parties related to this Agreement. The parties agree to make a good faith effort to resolve any disputes by negotiation.
Headings. The headings and captions in this Agreement are for convenience purposes only, and will not be used to construe the terms of this Agreement.
Independent Contractor. Conflux is an independent contractor, and no party will have the authority to bind, represent or commit the other. Nothing in this Agreement will be deemed or construed to create a joint venture, partnership, or agency relationship between the parties for any purpose. Conflux and its employees will not be entitled to any of Client’s benefits, including: (a) income tax withholding; (b) 401(k) or other retirement benefits; or (c) employee stock purchase or stock option plans. Conflux and Client will be solely responsible for the withholding and payment of all taxes and insurance premiums owed by its employees, including workers’ compensation insurance.
Force Majeure. Neither party will be liable for any delay or failure to perform under this Agreement if such delay or failure is due to any contingency beyond its reasonable control, including without limitation, war, sabotage, insurrection, riot or other act of civil disobedience, act of public enemy, act of any government affecting the terms hereof, fire, explosion, flood, or other act of God.
Insurance. Conflux and Client will each maintain customary amounts of insurance against losses and damages to persons or property proximately caused by the negligence of either party in performing its obligations hereunder including workers’ compensation insurance, and Client will carry business loss insurance to cover any potential losses it might incur as a result of Conflux’s failure to perform hereunder. Upon either party’s reasonable request, either party will produce a certificate of insurance demonstrating such coverage.
Last Updated: November 09, 2020
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