SITEPRO STANDARD TERMS AND CONDITIONS AGREEMENT
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY EXECUTING AN APPLICABLE SITEPRO ORDER, CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.
These SitePro Standard Terms and Conditions (“Terms”) and signed Order, as defined below in Article 1 and incorporated by reference, (collectively referred to herein as the “Agreement”) constitute an agreement which governs the relationship between SitePro, Inc. (“Company”) and the Customer named in the signed Order. This Agreement is effective as of the date Customer executes an applicable Order (the “Effective Date”). Each party represents and warrants that it has read and understands all of the provisions of this Agreement. If Customer is entering into this Agreement on behalf of another legal entity, Customer represents and warrants that it has authority to bind such entity to this Agreement, in which case the term “Customer” shall refer to such entity.
Customer must accept this Agreement before receiving any Technology Enablement Services (as defined below) or Goods (as defined below) (collectively the “SitePro Goods and Services”). These Terms together with the accompanying Order constitute the entire agreement between the parties related to the SitePro Goods and Services, and supersede all prior or contemporaneous understandings, agreements, negotiation, representations and warranties, and communications, both written and oral.
Company provides an automation solution (the “Solution”) which consists of equipment installed on Customer’s property and accessed remotely as well as software hosted on customers’ computers. Company also provides professional services related to implementation, installation, and customization of the Solution. The parties have agreed that Company will provide the Solution to Customer, as well as such professional services as the parties may agree, now and pursuant to future orders of work. Therefore, in consideration for the commitments set forth below, the adequacy of which consideration the parties hereby acknowledge, the parties agree as follows.
This Agreement was last updated on July 1, 2021.
1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.
“Technology Enablement Services” means the installation, professional, consulting, and/or managed service offerings made available to Customer in accordance with this Agreement, as specified in an Order entered into by Customer and Company.
“Technology Services” means the software-enabled product offerings made available to Customer as a service in accordance with the applicable Technology Services agreement, as specified in an Order entered into by Customer and Company.
“Goods” means all goods that are sold, licensed, or leased to Customer by Company.
“Order” means an ordering document, proposal, or other form, in print or electronic form, that specifies the SitePro Goods and Technology Enablement Services to be provided under this Agreement, which is entered into between Customer and Company, including any addenda and supplements thereto.
“Software” means the proprietary software solutions of Company and its licensors that may be made available to Customer as part of the Technology Services.
2. TECHNOLOGY ENABLEMENT SERVICES
2.1 Service Fees. Company shall provide certain Technology Enablement Services to Customer in accordance with the applicable Order and these Terms. In consideration of the Technology Enablement Services provided by Company, Customer shall pay the fees for the Technology Enablement Services in accordance with the applicable Order and these Terms. For avoidance of doubt, any labor estimates and performance dates specified in the applicable Order are estimates only and are subject to the actual scope of the Technology Enablement Services. Customer shall be billed by the Company on the basis of the actual scope of the Technology Enablement Services. Customer hereby acknowledges and agrees that in the event the Customer desires to have the Company provide other services offered by the Company such as Technology Services, such Technology Services will be governed by the order and terms of services applicable thereto.
2.2 Design Responsibility. Company will provide the Technology Enablement Services in accordance with the design specifications provided by Customer. Customer agrees that it is responsible for ensuring that project design specifications meet Customer’s requirements, regardless of whether Company has provided Customer with any design recommendations. Customer may not rely on design recommendations provided by Company, as they may be based on incomplete information, may contains errors, and may not be suitable for Customer’s particular purpose.
2.3 Safe Work Environment. Customer shall provide Company employees, agents, or contractors with a safe working environment while on Customer premises that is in compliance with all applicable health and safety laws. Company will ensure that while Company employees, agents, or contractors are on Customer premises, all proper and legal health and safety precautions are taken while performing the Technology Enablement Services. Company warrants that while Company employees, agents, or contractors are on Customer premises, they will comply with all reasonable workplace policies of Customer, as notified by Customer to Company.
2.4 Revisions. Company may revise the features and functions of the Technology Enablement Services and Technology Services (collectively referred to as “Services”) at any time, provided no such revision materially reduces features or functionality provided pursuant to an outstanding Order.
3. SALE OF GOODS
3.1 Price. As specified in the applicable Order, Customer shall purchase the Goods from Company at the prices (the “Prices”) set forth in the Company’s quotation or proposal referenced in the Order; provided, however, if the Company’s Prices for such Goods should increase before delivery of the Goods to a carrier for shipment to Customer, then these Terms shall be construed as if the increased prices were originally inserted herein, and Customer shall be billed by Company on the basis of such increased prices.
3.2 Security Interest. As collateral security for the payment of the purchase price of the Goods and for so long as the payment of such purchase price remains outstanding, Customer hereby grants to Company a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Goods, wherever located, and whether now existing or here after arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code.
3.3 Shipment. Company shall deliver the Goods within the time identified in the Order or in lieu thereof a reasonable time after the receipt of the Order using Company’s standard methods for packaging and shipping such Goods. Delivery shall be made FOB Company’s Lubbock, Texas facility or such other location as may be designated in the Order. Company may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the Goods shipped whether such shipment is in whole or partial fulfillment of the Order. Title and risk of loss shall pass to Customer upon delivery of the Goods at the designated delivery point (the “Delivery Point”). Company shall not be liable for any delays, loss or damage in transit.
3.4 Acceptance. Customer shall take delivery of the Goods upon the date of Company’s written notice that the Goods have been delivered to the Delivery Point. Customer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point unless specified otherwise in an Order. If for any reason Customer fails to accept delivery of any of the Goods on the date fixed pursuant to Company’s notice that the Goods have been delivered at the Delivery Point, or if Company is unable to deliver the Goods at the Delivery Point on such date because Customer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Customer; (ii) the Goods shall be deemed to have been delivered; and (iii) Company, at its option, may store the Goods until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3.5 Limited Liability. Any liability of Company for non‐delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered. The Company shall not be liable for any non‐delivery of Goods (even if caused by Company’s negligence) unless Customer gives written notice to Company of the non‐delivery within ten (10) days of the date when the Goods would in the ordinary course of events have been received. The quantity of any installment of Goods as recorded by Company on dispatch from Company’s designated shipping point is conclusive evidence of the quantity received by Customer on delivery unless Customer can provide conclusive evidence proving the contrary.
3.6 Inspection. Customer shall inspect the Goods within ten (10) days of receipt (“Inspection Period”). Customer will be deemed to have accepted the Goods unless it notifies Company in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Company. “Nonconforming Goods” means only the following: (i) item shipped is different than identified in Customer’s purchase order; or (ii) item’s label or packaging incorrectly identifies its contents. If Customer timely notifies Company of any Nonconforming Goods, Company shall, in its sole discretion, (a) replace such Nonconforming Goods with conforming Goods, or (b) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the Nonconforming Goods to Company’s Lubbock, Texas facility unless Company instructs Customer to direct shipment to another location. If Company exercises its option to replace Nonconforming Goods, Company shall, after receiving Customer’s shipment of Nonconforming Goods, ship to Customer, at Customer’s expense and risk of loss, the replaced Goods to the Delivery Point. Customer acknowledges and agrees that the remedies set forth in this Section 3.6 are Customer’s exclusive remedies for the delivery of Nonconforming Goods. Except as set forth in the Order or under this Section 3.6, all sales of Goods to Customer are made on a one‐way basis and Customer has no right to return Goods purchased under this Agreement to Company.
4. CUSTOMER OBLIGATIONS
4.1 Customer Obligations. Customer shall: (i) cooperate with Company in all matters relating to the SitePro Goods and Services and provide such access to Customer’s premises, and such office accommodation and other facilities as may reasonably be requested by Company, for the purposes of providing the SitePro Goods and Services; (ii) respond promptly to any Company request to provide direction, information, designs, approvals, authorizations or decisions that are reasonably necessary for Company to provide the SitePro Goods and Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as Company may reasonably request to provide the SitePro Goods and Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the SitePro Goods and Services before the date on which the SitePro Goods and Services are to be provided.
4.2 Customer’s Acts or Omissions. If Company’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Company shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
5. PAYMENT TERMS
5.1 Invoicing and Payment. Customer shall pay all invoiced amounts due to Company within thirty (30) days from the date of Company’s invoice. Customer shall make all payments hereunder in US dollars. Customer is responsible for providing complete and accurate billing and contact information to Company and notifying Company of any changes to such information. If customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days following the receipt of the applicable invoice in order to receive an adjustment or credit.
5.2 Taxes. Customer shall be responsible for the payment of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer for any Goods or Services provided to Customer hereunder, other than any taxes imposed on, or with respect to, Company’s income, revenues, gross receipts, personnel or real or personal property or other assets, an any federal income taxes, withholding requirements, self‐employment taxes, social security taxes, sales taxes, use taxes and other taxes on payments made by Company to its employees and contractors.
5.3 Overdue Charges. Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Company for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
5.4 Suspension of Service. In addition to all other remedies available under these Terms or at law (which Company does not waive by the exercise of any rights hereunder), if Customer fails to pay within 30 days after becoming due any amounts due to Company under this Agreement or any other agreement between Company and Customer and such failure is not cured within ten (10) days after written notice by Company, Company shall be entitled to suspend the performance of any services and the delivery of any Goods until payment has been made in full.
5.5 Setoff. Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with the Company, whether relating to Company's breach, bankruptcy or otherwise.
6. LIMITED WARRANTY
(a) Company warrants that (i) the Technology Enablement Services will be performed in a professional and workmanlike manner in accordance with industry standards and applicable law, and (ii) the Goods (excluding Third Party Products, as defined in Section 6(e) below) will materially conform with the applicable written specifications as set forth in a mutually agreed exhibit to the Order and will be free from material defects in material or workmanship, upon delivery and for the duration of the Warranty Period, under normal operating conditions and within the limits of any specified test provisions. For purposes of this express limited warranty, the “Warranty Period” means (x) in the case of Goods, the 60‐day period beginning on the date the Goods in question are installed by Company (or the date of delivery if such Goods are not installed by Company) and (y) in the case of Technology Enablement Services, the 14‐day period beginning on the date the Technology Enablement Services in question are performed by Company.
(b) Subject to the terms and conditions of the express limited warranty provided by this Article 6, Company, at its election and expense, shall repair or replace any such defective or non‐conforming Goods (or part thereof) and shall re‐perform any such defective or non‐conforming Technology Enablement Services (or part thereof), as applicable, or at its election, return the stated contract price paid for such defective or non‐conforming portion of the Goods or Technology Enablement Services, as applicable. The Company shall not be liable for a breach of the warranty unless: (i) Customer gives written notice to Company during the Warranty Period that reasonably describes the alleged defect or non‐conformity; (ii) Company is given a reasonable opportunity after receiving the notice to investigate such defect or non‐conformity and Customer grants Company access to all relevant facilities and locations at all reasonable times in order to conduct such investigation (or returns the Goods in question to Company’s place of business, if requested to do so by Company, for such investigation to take place there); and (iii) Company reasonably verifies Customer’s claim that the Goods or Technology Enablement Services do not comply with the express limited warranty provided by this Article 6. If an alleged defect or nonconformity is found not to be covered by the express limited warranty provided by this Article 6, Customer shall be charged the Company’s standard rates for service calls and any replacement Goods, repairs or additional work performed by the Company. Customer shall assume all responsibility and expense for removal, reinstallation and freight in connection with the express limited warranty provided by this Article 6.
(c) The Company shall not be liable for a breach of the express limited warranty provided by this Article 6 in the case of: (i) any further use of such Goods by Customer or its agents or representatives after giving such notice; (ii) the defect or non‐conformity related to acts or omissions on the part of Customer or its agents or representatives, including, but not limited to, errors attributable to inaccurate or incomplete information supplied by Customer or its agents or representatives; (iii) any failure by Customer or its agents or representatives to follow Company’s oral or written specifications, guidelines or instructions as to the storage, installation, commissioning, maintenance, operation or use of the Goods or Services; or (iv) any change, modification, alteration, reconstruction or repair by Customer or its agents or representatives or persons other than Company or Company’s authorized representatives without the prior written consent of Company.
(d) The express limited warranty provided by this Article 6 does not apply in cases of: (i) abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper maintenance, improper handling, overheat, overload, power quality disturbances (sags, surges, harmonics, etc.), abnormal physical stress, and/or abnormal environmental conditions; (ii) storage, operation or use outside of specified temperatures or pressures or other specifications, guidelines or instructions issued by Company; or (iii) use with any third party product or service that has not been previously approved in writing by Company.
(e) Certain goods or services (including, but not limited to, software) provided by one or more third parties (“Third Party Products”) may constitute, contain, be contained in, incorporated into, attached to, packaged or provided together with, the Goods or Technology Enablement Services, including, without limitation, Third Party Products provided by Customer to be tied into the Goods and Technology Enablement Services. Third Party Products are not covered by the express limited warranty provided by this Article 6. The Company shall have no liability or obligation whatsoever with respect to any Third Party Product under the terms of the original manufacturer’s warranty or otherwise; however, the Company may, in its discretion, with respect to Third Party Products provided by the Company facilitate the warranty processing which may occur between Customer and the original manufacturer or other provider of the Third Party Product, in which case any cost will be passed through the Company to Customer. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, STATUTE OR OTHERWISE, AND COMPANY SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
(f) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6(a), COMPANY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO ANY GOODS OR TECHNOLOGY ENABLEMENT SERVICES, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, STATUTE OR OTHERWISE AND COMPANY SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
FURTHERMORE, CUSTOMER IS RESPONSIBLE FOR IMPLEMENTING AND MAINTAINING SECURITY MEASURES ON SITE TO ENSURE CUSTOMER DATA WILL REMAIN SECURE.
(g) THE PROVISIONS OF THIS Article 6 ARE IN LIEU OF ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, STATUTE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, AND EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6(a), ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED BY COMPANY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6(a), COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES AS TO THE CONDITION, VALUE OR QUALITIES OF ANY GOODS, TECHNOLOGY ENABLEMENT SERVICES, INFORMATION OR MATERIALS PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, WHETHER ANY SUCH GOODS, TECHNOLOGY ENABLEMENT SERVICES, INFORMATION OR MATERIALS WILL BE ACCURATE, COMPLETE, SECURE, CONTINUOUS, UNINTERRUPTED OR ERROR‐FREE.
FURTHERMORE, COMPANY SHALL NOT BE LIABLE TO CUSTOMER FOR USE OF THE SITEPRO GOODS AND SERVICES IN HAZARDOUS OR HIGH-RISK ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, IN WHICH THE FAILURE OR MALFUNCTION OF THE SITEPRO GOODS AND SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE. SUCH USE IS AT CUSTOMER’S OWN RISK, EVEN IF COMPANY KNOWS OF SUCH USE, AND COMPANY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH HIGH-RISK ACTIVITIES.
(h) THE PROVISIONS OF THIS Article 6 CONSTITUTE COMPANY’S SOLE LIABILITY AND OBLIGATION AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY, DEFECT OR NON‐CONFORMITY WITH RESPECT TO ANY GOODS OR TECHNOLOGY ENABLEMENT SERVICES PROVIDED BY COMPANY OR OTHERWISE, WHETHER SUCH CLAIMS ARE BASED ON BREACH OF CONTRACT, STATUTE, INDEMNITY, CONTRIBUTION, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHER THEORIES. THESE LIMITATIONS APPLY EVEN IF ANY OF THE LIMITED REMEDIES PROVIDED BY THIS SECTION FAILS OF ITS ESSENTIAL PURPOSE. Without limiting the generality of the foregoing, Customer specifically waives any right to seek damages or claims for loss associated with downtime of its operations or remediation or clean‐up costs from an undesirable occurrence arising out of or related to the Technology Enablement Services.
7. LIMITATION OF LIABILITY; INDEMNIFICATION
7.1 Indemnification by Company.
(a) Exclusion of Consequential and Related Damages. IN NO EVENT SHALL COMPANY, COMPANY’S CONTRACTORS AND SUBCONTRACTORS OF ANY TIER, AND COMPANY’S DIRECTORS, OFFICERS, OWNERS, EMPLOYEES, REPRESENTATIVES, AGENTS, PARENT, AFFILIATES, AND SUBSIDIARIES, DIRECT AND REMOTE, AS WELL AS INVITEES OR GUESTS OF ANY OF THE FOREGOING OR INDIVIDUALS OR ENTITIES (hereinafter the “COMPANY GROUP”) BE LIABLE TO CUSTOMER, CUSTOMER’S CONTRACTORS AND SUBCONTRACTORS OF ANY TIER, AND CUSTOMER’S DIRECTORS, OFFICERS, OWNERS, EMPLOYEES, REPRESENTATIVES, AGENTS, PARENT, AFFILIATES, AND SUBSIDIARIES, DIRECT AND REMOTE, AS WELL AS INVITEES OR GUESTS OF ANY OF THE FOREGOING OR INDIVIDUALS OR ENTITIES (hereinafter the “CUSTOMER GROUP”) OR ANY THIRD PARTY WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR A BREACH THEREOF, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (WHETHER SUCH BE IN CONTRACT, TORT, NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, INDEMNITY OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, FOR ANY: CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA, COSTS OF CAPITAL, OR OF SUBSTITUTE USE OR PERFORMANCE, CLEAN‐UP, REMEDIATION, DOWNTIME, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATED TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CUSTOMER OR COULD HAVE BEEN REASONABLY FORESEEN BY CUSTOMER, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) Limitation of Liability. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7, IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO COMPANY DURING THE 12 MONTH PERIOD PRECEDING THE CLAIM TO COMPANY FOR THE SITEPRO GOODS AND SERVICES PROVIDED UNDER THE RELATED ORDER REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNITY OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
7.2 Indemnification by Customer.
(a) Customer shall indemnify and defend Company Group against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the Solution and components including without limitation: (a) claims by Customer’s Clients or other Users or by Customer's or Customer’s Clients’ employees; (b) claims related to Data Incidents (as defined below); (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded through Customer’s account, including without limitation by Customer Data. Indemnified Claims pursuant to the preceding sentence also include claims related to the injury to or death of any individual, or any loss of or damage to real or tangible personal property, caused by the act or omission of Customer or of any of its agents, subcontractors, or employees. (A “Data Incident” is any (i) unauthorized disclosure of, access to, or use of Customer Data, or (ii) violation of Privacy/Security Law through Customer’s account. Data Incidents include, without limitation, such events caused by Company, Customer, Customer’s customers or other users, by hackers, and by any other third party)
(b) The Customer hereby further agrees to protect, release, defend, indemnify and hold the Company Group harmless from and against any and all claims, demands, and causes of action of every kind and character (including without limitation, fines, penalties, remedial obligations, court costs and reasonable attorneys’ fees, including attorneys’ fees incurred in the enforcement of this indemnity) (collectively the “Indemnifiable Claims”) arising out of the emission, discharge or release of pollutants or substances prohibited by law, unless such emission, discharge or release arises out of the gross negligence or willful misconduct of a member of the Company Group.
7.3 Litigation & Additional Terms. The obligations of the indemnifying party (“Indemnitor”) pursuant to Sections 7.1 and 7.2 above: (a) include retention and payment of attorneys and payment of court costs, as well as settlement at Indemnitor’s expense and payment of judgments; and (b) will be excused to the extent the other contracting party’s (“Indemnified Party’s”) or any of such Indemnified Party’s Associates’ fail to provide prompt notice of the Indemnified Claim or reasonably cooperate in a manner which materially prejudices the defense. If Indemnitor fails to assume the defense on time to avoid prejudicing the defense, Indemnified Party may defend the Indemnified Claim, without loss of rights pursuant to this Article 7. Indemnitor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided Indemnified Party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (A party’s “Associates” are its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
During the term of this Agreement, Customer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, casualty insurance adequate to insure against loss or damage from any external cause and commercial general liability (including product liability) with financially sound and reputable insurers and with the Company named as insured or co‐insured. Upon Company’ request, Customer shall provide the Company with a certificate of insurance from the Customer’s insurer evidencing the insurance coverage specified in these Terms. Customer shall provide the Company with ten (10) days’ advance written notice in the event of a cancellation or material change in the Customer’s insurance policy. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against the Company’s insurers and Company.
9.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Company includes the Technology Services, Technology Enablement Services, and the Software, and the terms and conditions of all Orders (including pricing) whether or not marked or designated as confidential. Confidential Information of each party includes business and marketing plans, technology, and technical information, product plans and designs, and business processes disclosed by such party and any other nonpublic, sensitive information the parties should reasonably consider a trade secret or otherwise confidential. However, Confidential Information does not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third-party without breach of any obligation owed to the Disclosing Party; or (d) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party.
9.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights, title, and interest, including intellectual property rights, in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). Receiving Party will: (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement and who are informed of and consent to the confidentiality provisions hereunder. Customer shall promptly notify Company of any misuse or misappropriation of Confidential Information that comes to Customer’s attention.
9.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
9.4 Non-Solicit. During the course of this Agreement as well as during a period of one year following the termination of this Agreement, either party shall not in any way, directly or indirectly, approach or entice away any employees of the other party to terminate their employment agreement with such party or to enter into an agreement with such party.
9.5 Injunction. Customer agrees that: (a) no adequate remedy exists at law if it breaches any of its obligations in this Article 9; (b) it would be difficult to determine the damages resulting from its breach of this Article 9, and such breach would cause irreparable harm to Company; and (iii) a grant of injunctive relief provides the best remedy for any such breach, without any requirement that Company prove actual damage or post a bond or other security. Customer waives any opposition to such injunctive relief or any right to such proof, bond, or other security. (This Section 9.5 does not limit either party’s right to injunctive relief for breaches not listed.)
9.6 Destruction of Confidential Information. Upon termination of this Agreement, Customer shall wipe clean all copies of Confidential Information or certify, in writing, the destruction thereof.
9.7 Company’s Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Company will retain all right, title, and interest in and to all Confidential Information.
10. INTELLECTUAL PROPERTY
All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know‐how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of the Company in the course of performing the Technology Enablement Services, including any items identified as such in the Order (collectively, the “Work Product”) shall be owned by Company. Company hereby grants Customer a limited, non‐exclusive, non‐transferable, non‐sublicensable license under any Intellectual Property Rights of Company that are embodied in any Work Product provided by Company to Customer hereunder to the limited extent necessary to enable Customer to make reasonable use of such Work Product for the duration of the applicable Work Product at the Customer. For avoidance of doubt, the foregoing license expressly excludes any software or applications in connection with the Technology Services. Where contemplated by the applicable order for Technology Services, certain software or applications may be made available by Company for use by Customer or its authorized users, as applicable, pursuant to the applicable agreement. Further, Company retains all right, title, and interest in and to the Solution, including without limitation all software used to provide the Solution and all graphics, user interfaces, logos, and trademarks reproduced through the Solution and components.
11. GENERAL PROVISIONS
11.1 Compliance with Law. Customer shall comply with all applicable laws, regulations, and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Customer shall comply with all export and import laws of all countries involved in the sale or provision of SitePro Goods or Services under this Agreement or any resale by Customer. Customer assumes all responsibility for any government import clearance. Company may terminate this Agreement if any governmental authority imposes countervailing duties or any other penalties on any SitePro Goods or Services.
11.2 Term and Termination. This Agreement commences on the date Customer first accepts it and continues until all Orders hereunder have expired or have been terminated. In addition to any remedies that may be provided under these Terms, Company may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under this Agreement; (ii) has otherwise failed to perform or comply with any of these Terms, in whole or in part, and such failure continues for 30 days after Customer’s receipt of written notice of such failure; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
11.3 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
11.4 Public Announcement. Customer hereby agrees that, upon reasonable notice to Customer, the Company may make a public announcement of the transactions contemplated by this Agreement, and may publicize the same in marketing materials, newspapers, and other publications, on the Company’s website and otherwise, and in connection therewith may use Customer’s name, tradenames, and logos.
11.5 Force Majeure. The Company shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Company including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock‐outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers, or inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage.
11.6 Goods and Services Change Orders. If either party wishes to change the scope or performance of any Order related to Goods and Technology Enablement Services, it shall submit details of the requested change to the other party in writing. Company shall, within a reasonable time after such request, provide a written estimate to Customer of: (i) the likely time required to implement the change; (ii) any necessary variations to the fees and other charges arising from the change; (iii) the likely effect of the change on the provision of Technology Enablement Services; and (iv) any other impact the change might have on the performance of this Agreement. Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with these Terms. Notwithstanding the foregoing, Company may, from time to time, make changes to the Technology Enablement Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Technology Enablement Services or the performance dates set forth in the Order, or the fees set forth in the Order by more than 5%, and the Customer shall be billed by Company and the Customer agrees to pay such bill on the basis of such changes.
11.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Orders), without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.8 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
11.9 No Third‐Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
11.10 Governing Law; Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder may be instituted in the federal courts of the United States, or the courts of the State of Texas in each case located in the County of Lubbock and each party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
11.11 Notices. All notices, request, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre‐paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
11.12 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
11.13 Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Article 6 (Limited Warranty), Article 7 (Limitation of Liability & Indemnification), Article 8 (Insurance), Article 9 (Confidentiality), Article 10 (Intellectual Property), and Article 11 (General Provisions).
11.14 Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
11.15 Conflicts. In case of a conflict among the attachments to this Agreement and this main body, the following order of precedence will govern: (a) this main body of this Agreement; (b) any Order, with more recent Orders taking precedence over later ones; and (c) any Company ancillary agreements posted online. No Order or other attachment incorporated into this Agreement after execution of this main body will be construed to amend this main body or any earlier attachment unless it specifically states its intent to do so and cites the section or sections amended.
11.16 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
11.17 Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.