MASTER PURCHASE AND SERVICES AGREEMENT
This Master Purchase and Services Agreement (collectively with executed Purchase Orders, this “Agreement”) applies between EVOTEK, Inc. including its subsidiaries and affiliates (“Company”) and the person, company or other entity entering into this Agreement (“Client”) by written statement of its authorized representative or by entering into a Purchase Order hereunder. Company and Client may be collectively referred to herein as the “Parties” or each as a “Party.” In consideration of the mutual covenants and agreements hereinafter set forth, the Parties agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have the meanings set forth below.
1.1 “Affiliate” means, with respect to a Party, any other person or Entity during any time that it is Controlling, Controlled by, or under common Control with, such Party. The term “control” (including the terms “controlled by” and “under common control with”) means the ownership, beneficially or of record, of more than 50% of the voting securities of an entity.
1.2 “Deliverables” means the Equipment and Services to be provided by Company, as a reseller, under this Agreement.
1.3 “Entity” means any person, corporation, partnership, sole proprietorship, limited liability company, joint venture, or other form of organization, and includes the Parties hereto.
1.4 “Equipment” means the software and/or hardware to be provided by Company, as a reseller, under this Agreement. Company may offer additional Equipment or discontinue Equipment offered at any time without notice.
1.5 “Purchase Order” means a written agreement entered into by the Parties, for Equipment and/or Services that references this Agreement, including but not limited to, an executed quote, purchase order, statement of work, work order, or email.
1.6 “Services” means the information technology integration and consulting services, functions, and responsibilities to be provided under this Agreement, as described in more detail in a Purchase Order.
1.7 “Third Party” means any Entity other than the Parties or any Affiliates of the Parties, and, for the avoidance of doubt, includes subcontractors of the Parties and a non-Party original equipment manufacturer (“OEM”) providing and/or manufacturing Deliverables.
2. PROVISION OF HARDWARE, SOFTWARE AND SERVICES.
2.1 Purchase Orders. This Agreement applies to each Purchase Order for Deliverables agreed by Company and Client. `Any additional or different terms or conditions in any form delivered by Client to Company are hereby deemed to be material alterations of the Agreement and notice of rejection of them is hereby given.
2.2 Specifications and Requirements. Company shall perform the Services and, as a reseller, shall resell and pass through the applicable Equipment, in accordance with the terms and conditions set forth herein and in the applicable Purchase Orders. Company shall have the authority to determine the manner in which any such Deliverables are to be provided.
2.3 Non-Exclusive Relationship. The Parties’ relationship is non-exclusive. Company may provide any hardware, software or services to any Third Party without any restriction hereunder.
2.4 Performance by Company’s Affiliates and Subcontractors. Except as specifically set forth in an Purchase Order, performance of the Company’s obligations hereunder may be made by Affiliates of Company and Company may from time to time subcontract Deliverables.
3. TERM. Unless terminated by a Party, this Agreement shall remain in effect and the terms hereof shall apply to every Purchase Order. Purchase Orders agreed prior to termination of this Agreement shall continue to be governed by the terms hereof, notwithstanding such termination.
4. CHANGE ORDER.
4.1 Change Orders. Either Party may request changes to the Deliverables by submitting to the other Party a completed Change Order; provided, however, that no Change Order will be binding on the Parties unless mutually agreed in writing.
4.2 Pending Change Orders. Except to the extent specifically changed by a Change Order, the scope of Deliverables, as provided herein and in the applicable Purchase Order, shall remain in full force and effect.
5.1 Charges. Client shall pay for the Deliverables invoiced under this Agreement in accordance with each applicable Purchase Order.
5.2 Invoicing. Company shall invoice all charges in accordance with the applicable Purchase Order. Each Purchase Order may establish credit, pre-payment or other terms as reasonably determined by the Parties.
5.3 Taxes. Client shall pay all sales, use, excise, and other similar taxes assessed relating to any Purchase Order. Client shall not be responsible for paying any taxes upon the real, personal, or intangible property of Company or its employees or upon the net income or profits of Company.
5.4 Due Date. Client shall pay Company invoices within 30 days of receipt thereof; provided, however, that Company may require that payment be made prior to delivery of applicable Deliverables or may establish credit terms or other requirements, as set forth in an Purchase Order.
5.5 Late Payments. Client’s payments hereunder shall be deemed late when Client fails to remit payment within 30 days of the invoice date of the applicable invoice, except as to amounts that are being disputed in good faith by written notice. Invoiced amounts not disputed in writing within 7 days of Client’s receipt thereof shall be deemed undisputed. Late payments shall bear interest at the rate of 1.5 % per month or the maximum rate allowed under law from the due date until paid in full. If a disputed amount is resolved in favor of Company, such amount shall bear interest from the due date until paid. Notwithstanding any other provision under this Agreement, Company may at its sole discretion, suspend without penalty to Company, or terminate for default of Client, any Deliverables due to nonpayment for 60 days or more of any undisputed portion of any invoice; provided, however, that such suspension or termination shall not relieve Client from its obligation to pay such undisputed amounts or otherwise perform its obligations under any Purchase Order. Company reserves the right to assert appropriate liens to ensure payment. Client agrees to reimburse Company its reasonable expenses, including attorney and other fees, incurred in collecting any amounts due to Company.
5.6 Expenses. Except to the extent otherwise set forth in this Agreement or in an applicable Purchase Order, each Party shall bear its own internal expenses related to the performance of this Agreement.
5.7 Delivery, Title and Risk of Loss. Except as otherwise set forth in a Purchase Order or as mutually agreed between the Parties in writing, Company shall deliver any Equipment FOB Destination at the ship-to address provided on the Purchase Order. Title and risk of loss of Equipment shall pass to Client upon delivery, except as otherwise set forth in the applicable OEM terms or end user agreements.
6.1 For Cause. In the event either Party fails to perform any of its material obligations under an Purchase Order, such Party shall be deemed in default and, if such Party fails to substantially cure its default within 30 days after receiving written notice from the non-defaulting Party specifying the nature of the default, then the non-defaulting Party may, by giving written notice to the other Party, terminate the applicable Purchase Order as of the date specified in such notice of termination. If Client is the defaulting Party, Company may, upon written notice to Client, terminate this Agreement and all outstanding Purchase Orders as of the date specified in such notice of termination. Notwithstanding the foregoing, Client shall pay Company for all Deliverables already performed and delivered prior to the date of termination and all costs incurred on behalf of Client in performance thereof, including without limitation all such amounts paid or incurred by Company owing to any Third Party for Deliverables.
6.2 For Insolvency. Subject to applicable law, if either Party becomes or is declared insolvent or bankrupt, is subject to any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, renewal, or readjustment of all or substantially all of its obligations, then the other Party, by giving written notice to such Party, may terminate this Agreement and all outstanding Purchase Orders as of the date specified in such notice of termination.
7. LIMITATION OF LIABILITY AND NATURE OF AVAILABLE DAMAGES.
7.1 LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES, OR THEIR RESPECTIVE REPRESENTATIVES BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, PROFIT, OR DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE DAMAGES OR SIMILAR DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT WITH RESPECT TO AMOUNTS CLIENT IS OBLIGATED TO PAY UNDER A PURCHASE ORDER, IN NO EVENT WILL EITHER PARTY’S, ITS AFFILIATES, OR ITS REPRESENTATIVES, LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE FEES PAID DURING THE PRECEDING TWELVE MONTHS BY CLIENT TO COMPANY UNDER THE PURCHASE ORDER PURSUANT TO WHICH SUCH CLAIM AROSE.
7.2 NATURE OF AVAILABLE DAMAGES. EXCEPT AS EXPRESSLY SET FORTH IN THE APPLICABLE PURCHASE ORDER, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES TO CLIENT OR ANY END USER CONCERNING THE EQUIPMENT, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. IN NO EVENT SHALL COMPANY BE LIABLE TO CLIENT OR ANY END USER FOR ANY DAMAGES OR LIABILITY OF ANY KIND RELATING TO THE EQUIPMENT, WHETHER IN TORT, CONTRACT OR OTHERWISE AND WHETHER FOR DIRECT, INDIRECT, CONSEQUENTIAL OR OTHER DAMAGES, AND ALL SUCH DAMAGES ARE DISCLAIMED. CLIENT’S SOLE RECOURSE FOR REMEDIES FOR CLAIMS (IF ANY) ARISING FROM USE OR POSSESSION OF EQUIPMENT, INCLUDING WITHOUT LIMITATION CLAIMS RELATED TO INFRINGEMENT, DATA LOSS, DAMAGE TO SYSTEMS AND OTHERWISE, IS TO THE OEM OF SUCH EQUIPMENT (PURSUANT TO THE TERMS AND LIMITATIONS OF THE APPLICABLE END USER AGREEMENT OR THE LIKE) AND NOT COMPANY.
8.1 Indemnity. The Indemnitor (as defined below) shall defend, at its own expense, and indemnify and hold the Indemnitee (as defined below) and its Affiliates, and its and their respective, directors, officers, employees, and agents harmless from and against any claim by a Third Party in connection with the performance of this Agreement or any Purchase Order to the extent based on: (a) work-related injury or death caused by the Indemnitor’s negligence; (b) tangible personal or real property damage caused by the Indemnitor’s or its Affiliates’ negligence or (c) breach of any end user agreement or other terms, including payment terms, applicable to Equipment. Client shall be responsible for any costs and expenses incurred by Company in connection with the enforcement of this Section, including without limitation reasonable attorneys’ fees.
8.2 Indemnity Procedures. The indemnification obligations set forth herein are subject to the following conditions: (a) the Party seeking indemnification pursuant to the provisions of this Agreement (the “Indemnitee”) shall promptly notify the other Party (the “Indemnitor”) in writing of the claim of which it has notice, provided that the failure or delay to so notify the Indemnitor shall not relieve the Indemnitor from any liability that it may have to Indemnitee hereunder so long as the failure or delay shall not have prejudiced the defense of such claim and then only to the extent that the Indemnitor actually is prejudiced; (b) Indemnitee allows the Indemnitor to have sole control of the defense of the claim and any settlement negotiations arising out of that claim provided, however, the Indemnitor may not, without Indemnitee’s prior written consent, settle or compromise any claim in a manner that: (i) does not unconditionally release Indemnitee and its directors, officers, employees or agents from all liability and obligation; (ii) requires Indemnitee or any of its directors, officers, employees or agents to contribute to any settlement of the claim; (iii) requires Indemnitee or any of its directors, officers, employees or agents to take or omit any action; or (iv) makes any public statement naming Indemnitee or from which the identity of Indemnitee could reasonably be ascertained; and (c) Indemnitee shall, at the Indemnitor’s reasonable request and expense, cooperate with the Indemnitor. Without limiting Indemnitor’s right to control defense and settlement, Indemnitee may, at its own expense, retain counsel of its own choice to participate in such defense and settlement.
9. DISPUTE RESOLUTION.
9.1 Equitable Relief. Either Party may seek equitable remedies, including specific performance and injunctive relief, for a breach of the other Party’s obligations under this Agreement. The Parties further agree that violation by one Party of its obligations relating to the treatment of Confidential Information hereunder would cause irreparable harm to the other Party not adequately compensable by monetary damages. Thus, in addition to other relief, the Parties agree that temporary and permanent injunctive relief, without posting of a bond, is an appropriate remedy to prevent any actual or threatened violation of such provisions or to enforce such provisions according to their terms.
9.2 Party Representatives. Except for certain emergency judicial relief authorized in accordance with applicable law, which may be brought at any time, the Parties agree that upon receipt of a written notice from either Party of the existence of a dispute between them, the Parties shall submit the dispute for informal resolution to their designated senior management who are not legal personnel.
9.3 Binding Arbitration. Any dispute that senior management are not able to resolve within 10 days of their first meeting, or within such extended period as they agree upon, shall be resolved by arbitration in San Diego, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the award may be entered in any court having jurisdiction and shall be considered final. This clause shall not preclude the Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
9.4 Choice of Law Venue and Jurisdiction. The validity, construction, and interpretation of this Agreement and the rights, duties, and obligations of the Parties hereto shall be governed by the laws of California. Except as specifically set forth herein, the Parties hereby irrevocably consent to venue and the personal jurisdiction of the state and federal courts located in San Diego, California for the resolution of any disputes arising hereunder.
10. DISCLAIMER OF WARRANTIES. COMPANY RESELLS AND PASSES THROUGH THE EQUIPMENT ON AN “AS IS, WHEN AVAILABLE” BASIS. THE EQUIPMENT MAY BE SUBJECT TO APPLICABLE WARRANTY, END-USER LICENSE, INTELLECTUAL PROPERTY INDEMNITY OR OTHER TERMS AVAILABLE FROM THE OEM OF THE EQUIPMENT. COMPANY WILL PASS ALL APPLICABLE WARRANTIES, LICENSES, INDEMNITIES AND SUCH OTHER TERMS AS MAY APPLY FROM THE OEM THROUGH TO CLIENT. COMPANY AND CLIENT HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESSED, OR IMPLIED INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. IN ADDITION, COMPANY DOES NOT REPRESENT OR WARRANT THAT ANY DELIVERABLES, INCLUDING HARDWARE, SOFTWARE OR THIRD-PARTY SERVICES, WILL BE FREE FROM ERRORS, DEFECTS OR INFRINGEMENT.
11. CLIENT OBLIGATIONS. Client shall (a) respond promptly to any Company request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Company to perform Services and deliver Equipment in accordance with the requirements of this Agreement; (b) provide such information as Company may request, in order to provide Deliverables, in a timely manner, and ensure that it is complete and accurate in all material respects; (c) obtain and maintain all necessary licenses and consents and comply with all applicable law in relation to the Deliverables, the installation of the Equipment, the use of materials, and the use of the Client equipment in relation to the Equipment, in all cases before the date on which the Services are to start or Equipment is to be delivered; and (c) not dispose of or use Equipment other than in accordance with Company’s written instructions or authorization. If Company’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client 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 Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
12.1 Scope of Confidential Information. Either Party (as “Disclosing Party”), may disclose or make available to the other Party (as “Receiving Party”), non-public proprietary and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within 10 days thereafter, is summarized in writing and confirmed as confidential “Confidential Information”; provided, however, Confidential Information excludes information that, at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 11 by Receiving Party or any of its affiliates, employees, officers, directors, partners, shareholders, agents, attorneys, third-party advisors, successors, and permitted assigns (“Representatives”); (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of Receiving Party or its Representatives before being disclosed by or on behalf of Disclosing Party; or (d) was or is independently developed by Receiving Party without reference to or use of, in whole or in part, any of Disclosing Party’s Confidential Information.
12.2 Protection of Confidential Information. Receiving Party shall, for 1 year from disclosure of such Confidential Information: (a) protect and safeguard the confidentiality of Disclosing Party’s Confidential Information with at least the same degree of care as Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, governmental authority, or any other entity (“Person”), except: (i) to Receiving Party’s Representatives who need to know the Confidential Information to assist Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement; or (ii) pursuant to applicable federal, state, or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction, provided that Receiving Party shall first provide Disclosing Party with: (A) prompt Notice of such requirement so that Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (B) reasonable assistance, at Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. The Receiving Party shall be responsible for any breach of this Section 11 caused by any of its Representatives. The provisions of this Section 11 shall survive termination or expiration of this Agreement for any reason for a period of one year after such termination or expiration. In the event of any conflict between the terms and provisions of this Section 11 and those of any other provision in this Agreement, the terms and provisions of this Section 11 will prevail. Except for the Equipment sold or resold to Client pursuant to an applicable Purchase Order, Client acknowledges that it has no rights in any software, hardware, systems, documentation, guidelines, procedures, methodologies, and similar related materials or processes, or any modifications thereof, provided by Company. As between the Parties, but subject to any terms and conditions applicable to Equipment set forth in the applicable Purchase Order, each Party shall remain the sole and exclusive owner of its own data and other Confidential Information.
13.1 Entire Agreement. This Agreement, together with the Purchase Orders entered into hereunder, constitutes the entire agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes all prior negotiations, agreements, and undertakings, whether written or oral, between the Parties with respect to such matter. This Agreement may be amended only by an instrument in writing referencing this Agreement and this Section 12.1 and executed by the Parties or their permitted assignees.
13.2 Order of Precedence. In the event of a conflict between the terms of this Agreement, any Purchase Order or amendment, the terms shall be controlling in this order: (i) amendment(s), (ii) this Agreement; and (iii) each Purchase Order, provided, however, that a Purchase Order shall control any conflict with the payment terms set forth in this Agreement and, if the Parties explicitly reference this Section 12.2 in such Purchase Order, such Purchase Order shall also control any conflict with any other terms of this Agreement.
13.3 Assignment; Third Parties. Except as otherwise set forth by the applicable OEM terms or end user agreements pertaining to Equipment only, neither Party may assign this Agreement or any rights, obligations, or benefits under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Any assignment in contravention of this Section shall be void. This Agreement shall bind, benefit and be enforceable by and against the Parties and their respective successors and assigns. Except as specifically set forth herein or in any Purchase Order, no third party shall be considered a beneficiary of, or entitled to any rights under, this Agreement or any Purchase Order.
13.4 Independent Contractors; No Solicitation. The Parties are independent contractors. Nothing contained in this Agreement shall be construed to make either Client or Company joint venturers, principals, partners, agents, or employees of the other. Neither Party shall have any right, power or authority, express or implied, to bind the other. No officer, director, employee, agent, affiliate, or contractor retained by Company to perform work on Client’s behalf under this Agreement shall be deemed to be an employee, agent, or contractor of Client. During the term of this Agreement and for a period of 1 year after the expiration or termination of this Agreement for any reason, Client agrees that it shall not induce or attempt to induce any person employed by Company during the term of this Agreement to leave the employ of Company and shall not hire any such person in any business or capacity.
13.5 Notices. All notices, requests, consents, and other communications required under this Agreement shall be in writing and shall be personally delivered or sent by one of the following methods by the Party providing such notice, request, consent, and other communication: (a) first class U.S. mail, registered or certified, return receipt requested, postage pre-paid; (b) electronic mail; or (c) U.S. express mail, or other overnight courier service. Notices shall be deemed given on the day received or confirmed delivered, whichever is earlier. Notices to each Party shall be given at the address specified on the Purchase Order, or if not specified, to the most recent address available to the Party providing notice
13.6 Section Headings. Section headings in this Agreement are for reference purposes only and shall not affect the interpretation or meaning of this Agreement nor be construed as part of this Agreement.
13.7 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary, a signed copy of this Agreement delivered by, e-mail, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
13.8 Waiver. No delay or omission by either Party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power unless made in writing and any such written waiver shall not be construed to be a waiver of any succeeding right or power.
13.9 Severability. If any provision of this Agreement is held for any reason by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect and the provision found to be contrary to law shall be deemed modified to the most limited extent required in order to cause such provision to be in accordance with applicable law while most fully carrying out the intent of the applicable provision as set forth herein.
13.10 Survival. Any provision of this Agreement shall survive the termination of this Agreement to the extent required to enforce the obligations of the Parties under any Purchase Order.
13.11 Construction. The Parties agree that the terms and conditions of this Agreement shall not be construed in favor of or against either Party because each Party had the opportunity to review and negotiate the terms hereof. For the avoidance of doubt, Client agrees that the terms set forth in this Agreement constitute reasonable terms applicable to each Purchase Order.
13.12 Insurance. At all times during the term of this Agreement each Party shall maintain a (a) commercial general liability insurance policy with limits no less than $1,000,000 each occurrence and $2,000,000 in the aggregate, including bodily injury and property damage; (b) technology errors and omissions liability/professional liability with limits no less than $2,000,000 per occurrence and $4,000,000 in the aggregate; and (c) cyber or network privacy with limits no less than $5,000,000. All insurance policies required pursuant to this Section 13.12 shall (a) provide that such insurance carriers give the insured party at least 30 days’ prior written notice of cancellation or non-renewal of policy coverage; provided that, prior to such cancellation, the insured party shall have new insurance policies in place that meet the requirements of this Section 13.12, (b) waive any right of subrogation of the insurers against the other Party or any of its Affiliates (c) provide that such insurance be primary insurance and any similar insurance in the name of and/or for the benefit of the other Party shall be excess and non-contributory; and name the other Party and its Affiliates, including, in each case, all successors and permitted assigns, as additional insureds.