Consent (Required) I agree to the terms and conditions.
TERMS AND CONDITIONS
These Terms and Conditions (these “Terms”) are the only terms which govern the sale of the goods and services (“Goods and Services”) by the Qlaborate, LLC, a Texas limited liability company (“Company”), to you (“Customer”). Notwithstanding anything herein to the contrary, if a written quote or other contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby, these Terms shall prevail over the terms and conditions of said contract to the extent they are inconsistent with these Terms. The accompanying quotation (the “Quotation,” collectively with these Terms, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Customer's general terms and conditions of purchase regardless whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer's order does not constitute acceptance of any of Customer's terms and conditions and does not serve to modify or amend these Terms. 1. Definitions. The following definitions shall be used herein: 1.1 “Claims” shall mean all awards, causes of action, claims, costs, expenses, damages, demands, judgments, liabilities, and losses of every character, kind, and nature including, without limitation, attorney’s fees, court costs, fines, penalties, punitive damages, and remedial obligations which arise of or are related to, directly or indirectly, the subject matter or performance of this Agreement. 1.2 “Company” is defined in the first paragraph set forth above. 1.3 “Company Group” shall mean Company, its parents, affiliates, subsidiaries, partners, joint owners, joint venturers, lessors, surface owners, and contractors of any tier (other than any member of Customer Group) and the managers, members, officers, agents, representatives, employees, insurers, invitees, and consultants of any of the foregoing. “Company Group” shall also include any entity, other than any member of Customer Group, which Company has contractually agreed to indemnify and/or assume the liability of, which arises out of, in connection with, or results from the performance of this Agreement. 1.4 “Customer” is defined in the first paragraph set forth above. 1.5 “Force Majeure Event” is defined in Section 11.1. 1.6 “Indemnified Person” is defined in Section 8.5. 1.7 “Indemnifying Person” is defined in Section 8.5. 1.8 “Notice” is defined in Section 14.1. 1.9 “party” shall mean each of Company or Customer, individually and “parties hereto” may refer to Company and Customer, collectively. 1.10 “Goods and Services” shall mean all work, jobs, obligations, duties, services and responsibilities undertaken or required to be undertaken by the Company pursuant to this Agreement. 2. The Company’s Performance and Warranty. 2.1 Standard of Performance. The Company will undertake to provide all Goods and Services to be provided under the Quotation in material compliance with the specifications and instructions set forth in the Quotation in a good and workmanlike manner. 2.2 The Company's Warranty. The Company warrants it and its subcontractors, if any, will provide all Goods and Services to be provided under the Quotation in a workmanlike manner in compliance with the terms of the applicable Quotation, in all material respects. The warranty set forth herein are expressly in lieu of all other warranties whatsoever, express, implied and/or statutory. 2.3 Laws, Rules, and Regulations. The Company agrees at all times in the performance of its obligations under this Agreement that the Company shall, and shall cause each member of the Company Group provide all Goods and Services to, comply, in all material respects, with all valid laws, statutes, rules, orders and regulations prescribed or promulgated by any governmental body having jurisdiction over any provide all Goods and Services to be provided under the Quotation. 3. Changes, Suspensions and Terminations of Goods and Services. 3.1 Changes in the Goods and Services. (a) No change shall be commenced or made to any provide all Goods and Services to be provided under the Quotation except in accordance with a duly issued change order (“Change Order”), which Change Order shall be mutually agreed upon by both Customer and the Company, each of which shall endeavor to evidence such mutual agreement in writing to the extent operationally feasible. (b) Customer may, at any time, without invalidating this Agreement, request changes to any provide all Goods and Services to be provided under the Quotation by delivering to the Company a Change Order altering, modifying, suspending, terminating, adding to, or deducting from the description of such Goods and Services. Should the Company agree to such Change Order, the parties shall adjust the description of such Goods and Services on the schedule, milestones, budget estimate, or other impact on the dates or deadlines relating to such Goods and Services. (c) The Company may decline to perform any proposed change in the Goods and Services until the parties mutually agree on the conditions upon which such Goods and Services will be performed by the Company. (d) All provisions of this Agreement shall apply to all changes to the Goods and Services, and no change to these Terms shall be implied as a result of any other change to the Goods and Services. 3.2 Suspensions or Termination of the Goods and Services. Customer may, at any time, suspend all or any part of the Goods and Services for any reason by giving at least 90 days prior written notice to the Company; provided, that all amounts remaining to be paid by customer to the Company during the remainder of the then existing term shall be automatically due and payable upon the Company’s receipt of such notice. The Company shall cease all Goods and Services so suspended on the date specified in such notice or the date such notice is received by the Company, whichever is later. Said suspension shall end when Customer, by notice to the Company, either requests the Company to resume suspended Goods and Services and the Company so agrees or Customer terminates that portion of the Goods and Services which has been suspended. 4. Records and Audits. The Company shall maintain a true and correct set of records pertaining to Goods and Services. Customer may, upon written request and during normal business hours, audit any and all records of the Company relating to the Goods and Services. 5. Independent Contractor. 5.1 Independent Contractor. In the performance of the Goods and Services hereunder, the Company agrees that it shall act as and be an independent contractor free and clear of any dominion or control by Customer in the manner in which said Goods and Services is to be performed or the establishment of hours of labor, and as such the Company: (a) acts as the employer of any employee of the Company by paying wages, directing activities, performing other similar functions characteristic of an employer-employee relationship; (b) is free to determine the manner in which the service is performed, including the hours of labor of or method of payment to any employee; (c) is required to furnish or have its employees, if any, furnish necessary equipment, tools, supplies, or materials to perform the work or service; (d) shall not be deemed to be an agent, representative, employee or servant of Customer in the performance of any Goods and Services performed hereunder or otherwise nor shall Customer be deemed to be an agent, representative, employee or servant of the Company; and (e) shall not have any authority to act for, represent, bind or obligate Customer. 5.2 No Fiduciary Duty. Neither party hereto owes any duty, fiduciary or otherwise, to the other party, except as expressly set forth herein. 6. Indemnity, Release of Liability, and Allocation of Risk. The following indemnifications and releases of liability will apply to all Goods and Services performed under this Agreement. 6.1 The Company's Indemnification of Customer. The Company releases Customer from any and all liability for, and shall protect, defend, indemnify, save and hold Customer harmless from and against any and all Claims arising out of or attributable to: (a) the breach of this Agreement by the Company; or (b) the gross negligence or willful misconduct of the Company; provided, however, the indemnity obligations of the Company set forth in this Section 6.1 shall not include any Claims to the extent such Claims arise out of or are attributable to the negligence or willful misconduct of any member of Customer. 6.2 Customer's Indemnification of the Company Group. Customer releases the Company Group from any and all liability for, and shall protect, defend, indemnify, save and hold the Company Group harmless from and against any and all Claims arising out of or attributable to: (a) misappropriation of any trade secret or patent, copyright or other proprietary right infringement by reason of information, equipment, or material used by or furnished by Customer; (b) the breach of this Agreement by Customer; (c) any act of Customer outside of the scope of this Agreement; or (d) the gross negligence or willful misconduct of Customer; provided, however, the indemnity obligations of Customer set forth in this Section 6.2 shall not include any Claims to the extent such Claims arise out of or are attributable to the gross negligence or willful misconduct of the Company. 6.3 Notification of Claims. If a claim is asserted against one of the parties hereto or any party obtains actual knowledge of facts that are reasonably likely to give rise to a claim for indemnity hereunder against the other party hereto, the party against whom the claim is first asserted or that obtains such actual knowledge must notify the potential Indemnifying Person in writing and provide such party with copies of all filings, notices, claims or other information related to such claim, potential claim or facts. The failure so to notify the other party shall not relieve the other party of any liability that it may have to provide indemnification hereunder, except to the extent, the party required to provide indemnification demonstrates that the defense of such action is or has been prejudiced thereby. 6.4 Limitations. (a) Notwithstanding anything to the contrary contained herein, no party hereto shall be entitled to exemplary, contingent, consequential, special or punitive damages or lost profits in connection with this Agreement and the transactions contemplated hereby (other than exemplary, contingent, consequential, special or punitive damages or lost profits, consequential, special or punitive damages suffered by third Persons for which responsibility is allocated between the parties hereto) and each of Customer and the Company hereby expressly waives any right to exemplary, contingent, consequential, special or punitive damages or lost profits consequential, special or punitive damages in connection with this Agreement and the transactions contemplated hereby (other than exemplary, contingent, consequential, special or punitive damages or lost profits consequential, special or punitive damages suffered by third persons for which responsibility is allocated between the parties hereto hereunder, at law or at equity). (b) IT IS THE INTENT OF PARTIES HERETO THAT THE MAXIMUM LIABILITY OF THE COMPANY TO CUSTOMER FOR ALL INDEMNITY OBLIGATIONS AND LIABILITIES ASSUMED BY THE COMPANY UNDER TERMS OF THIS AGREEMENT BE LIMITED TO THE LESSER OF: (I) THE ACTUAL AMOUNT OF LOSS OR DAMAGE SUFFERED BY THE CLAIMANT; OR (II) THE AMOUNT PAID CUSTOMER TO THE COMPANY PURSUANT TO THIS AGREEMENT OVER THE IMMEDIATELY PRIOR THREE (3) MONTHS. 6.5 Defense of Claims. A party hereto that has an indemnity obligation hereunder to the other party or its insurer (the “Indemnifying Person”) shall have the right, but not the obligation to defend, at its sole cost and expense, any Claim which such party has an indemnity obligation. In the event such Indemnifying Person elects to defend such Claim, the Indemnifying Person shall have full control of such defense and proceedings, including any compromise or settlement thereof. If requested by the Indemnifying Person, the party owed the indemnity obligation hereunder (the “Indemnified Person”) agrees to cooperate in contesting any Claim which the Indemnifying Person elects to contest; provided, however, that the Indemnified Person shall not be required to bring any counterclaim or cross-complaint against any Person. The Indemnified Person may participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Person pursuant to this Section 6.5. If an Indemnifying Person assumes the defense of such proceeding, (a) no compromise or settlement thereof may be effected by the Indemnifying Person without the Indemnified Person's reasonable consent unless (i) there is no finding or admission of any violation of law or any violation of the rights of any person or entity and no effect on any other claims that may be made against the Indemnified Person, and (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Person; and (b) the Indemnifying Person shall have no liability with respect to any compromise or settlement thereof effected without its consent (which shall not be unreasonably withheld). If notice is given to an Indemnifying Person of the commencement of any proceeding and it does not, within fifteen (15) business days after the Indemnified Person's notice is given, give notice to the Indemnified Person of its election to assume the defense thereof, the Indemnifying Person shall be bound by any determination made in such action or any compromise or settlement thereof effected by the Indemnified Person. 6.6 Administration of Claims. Any claim for indemnity under this Section 6 by any Indemnified party other than Customer or the Company must be brought and administered by the applicable party or its insurer. No Indemnified party other than Customer, the Company or their respective insurers shall have any rights against either Customer, the Company or their respective insurers under the terms of this Section 6 except as may be exercised on such person's behalf by Customer, the Company or their respective insurers, as applicable, pursuant to this Section 6. Each of Customer or the Company may elect to exercise or not exercise indemnification rights under this Section 6 on behalf of the other Indemnified Person in its sole discretion and shall have no liability to any such other Indemnified Person for any action or inaction under this Section 6. 7. Intellectual Property; Title to Goods. 7.1 Title to Intellectual Property. Title to all plans and specifications and technical data, including drawings, information, flow diagrams, layout details and specifications, computer programs and their contents (and the underlying intellectual property related to each of the foregoing), equipment, software, and other materials which have been furnished to Customer by the Company or developed or derived by the Company for Customer pursuant to this Agreement shall belong to and become the property of the Company (except as explicitly provided in the Quotation) and shall not be commingled with any other information, data, or technology for any purpose other than in connection with the Goods and Services performed hereunder. Customer shall assign or cause to be assigned, and hereby does assign to the Company all copyrights, trademarks, and all inventions, patentable and unpatentable, relating to the Goods and Services developed by the Company in the course and scope of the Goods and Services performed hereunder. Customer shall execute or cause its employees to execute any assignments, applications, or other instruments as may be necessary to carry out such assignment. 7.2 Title to Goods. Title to all Hardware provided pursuant to the Quotation shall at all times belong to and be the property of the Company. Upon termination of this Agreement for any reason, Customer shall return all such Hardware to the Company at Customer’s prepaid expense (which shall include insurance for all Hardware in an amount equal to the full replacement cost of such Hardware) within fourteen (14) days of such termination in its original condition, normal wear and tear excepted. Upon receipt of returned Hardware, the Company will determine, in its sole discretion, the condition of the Hardware. To the extent that the Company determines that any Hardware is not in its original condition and/or working properly, the Company will invoice Customer for the full replacement cost of the Hardware less two percent (2.0%) for each calendar month that Customer used the Hardware and Customer will be responsible paying such invoice within five (5) business days of receipt. To the extent that the Company receives a return of Hardware after fourteen (14) days of termination of this Agreement, the Company shall charge Customer a restocking fee in the amount of twenty percent (20.0%) of the replacement cost of the Hardware. 8. Consideration. The consideration to be paid by Customer to the Company for provision of Goods and Services shall be the amount set forth and agreed to in the Quotation. The amount of consideration to be paid by Customer to the Company as provided in the Quotation may be amended by the Company in its sole discretion upon thirty (30) days prior written notice to Customer. 9. Force Majeure. 9.1 Force Majeure. “Force Majeure Event” shall mean any act that (a) renders it impossible for the affected party to perform its obligations under this Agreement or delays such affected party to do so, (b) is beyond the reasonable control of the affected party, (c) is not due to its fault or negligence and (d) could not be avoided, by the party who suffers it, by the exercise of due diligence, including the expenditure of any commercially reasonable sum of money. Subject to the satisfaction of the conditions set forth in (a) through (d) above, Force Majeure shall include: (i) natural phenomena, such as hurricanes, blizzards, storms, floods, lightning and earthquakes; (ii) wars, civil disturbances, revolts, insurrections, sabotage and commercial embargoes against the United States of America; (iii) transportation disasters, whether by ocean, rail, land or air; (iv) strikes or other labor disputes in the United States of America that are not due to the breach of any labor agreement by the affected party; (v) fires; (vi) actions or omissions of a Governmental Authority that were not voluntarily induced or promoted by the affected party, or brought about by the breach of its obligations under this Agreement or any applicable law; (vii) impossibility of either party, in spite of having made its commercially reasonable efforts, to timely and duly obtain any permit or approval necessary to enable such party to fulfill its obligations derived hereunder or any Statement of Goods and Services issued hereunder; provided that under no circumstances shall Force Majeure include any of the following events: (A) economic hardship; (B) changes in market conditions, except as provided in subsection (iv) above; or (C) material or equipment failures due to the Company Group's failure to install, maintain and repair such material or equipment in accordance with prudent industry standards. 9.2 Effect of Force Majeure Event. In the event of a Force Majeure Event, the party claiming a Force Majeure Event shall promptly give written notice to the other party describing the particulars of the Force Majeure Event. Failure to give prompt notice shall not preclude a party from claiming a Force Majeure Event. The party claiming a Force Majeure Event shall take all reasonable measures to minimize the effect of a Force Majeure Event and shall provide documentation of the impacts to the other party. Any delay or failure in carrying out the duties and obligations imposed under this Agreement by either party hereto (other than the obligation to pay money in a timely manner) shall not constitute default or give rise to any Claim for damages if, and to the extent, such delay or failure is caused by a Force Majeure Event. The suspension of performance of the Goods and Services to be performed hereunder shall be of no greater scope and of no longer duration than is reasonably required by the Force Majeure Event. 10. Confidential Information. Customer and the Company agree that during the term of this Agreement, each party may be exposed to information and materials which are confidential, privileged, and proprietary in nature involving without limitation the other party’s methods, expertise, operations, geological and geophysical data, exploration programs, financial matters, and other sensitive issues. By entering into this Agreement, each party hereby acknowledges and agrees that any and all information and materials provided to such party by the other party or to which the such party gains access from the other party in any form maintained or created whether documented or electronically stored or otherwise, that the party may be involved with or exposed to by the other party, shall at all times during the term of this Agreement and at all times after its expiration, remain confidential, privileged and proprietary and shall be used only for the purposes contemplated by this Agreement. Neither party shall disclose to any third party any information or material provided to them by the other party without the prior written consent of the other party. The obligation of confidentiality shall not apply to information and materials which: (a) now or hereafter become a part of the public domain other than as a result of a wrongful act or omission by a party to this Agreement; (b) are disclosed to a party to this Agreement by a third party who has, upon reasonable inquiry, the lawful right to make such disclosure; (c) are required to be disclosed by either party to this Agreement in response to a judicial or administrative process from a court or governmental body of competent jurisdiction with lawful authority to demand the production of same (provided that the disclosing party has given written notice to the other party prior to such disclosure); or (d) are developed by either party to this Agreement without the benefit or use of the confidential information received from the other party. 11. Termination of Agreement. 11.1 Term. This Agreement shall be effective for a term of one (1) year following the Effective Date unless sooner terminate pursuant to the terms hereof. This Agreement shall automatically renew for additional terms of one (1) year (with the consideration to be paid pursuant to the Quotation adjusted to the Company’s then current pricing) unless terminated by either party pursuant to Section 11.2 or 11.3. 11.2 Termination for Insolvency. Should either party become insolvent or make an assignment for the benefit of creditors or be adjudicated, bankrupt or admit in writing his inability to pay its debts generally as the same become due, or should any proceedings be instituted by such party under any federal, state or local laws for relief of debtors or for the appointment of a receiver, trustee or liquidator of such party, or should a voluntary petition in bankruptcy or for a reorganization or for an adjudication of such party as insolvent or a bankruptcy be filed, or should an attachment be levied upon such party’s equipment and not removed within five (5) days therefrom, then upon the occurrence of any such event the other party shall thereupon have the right to cancel this Agreement and all verbal or written agreements between the parties hereto, and to terminate immediately all Goods and Services then being performed by the Company hereunder. 11.3 Termination for Breach. In the event that either party hereto breaches this Agreement, the other party hereto may terminate this Agreement if such breach continues to exist following delivery of written notice to the breaching party and a period of at least thirty (30) days thereafter for the breaching party to cure such breach. In the event that the Company terminates this Agreement pursuant to this Section 11.3, all amounts remaining to be paid during the remainder of the then current Term shall become immediately due and payable upon the effectiveness of such termination. Termination of this Agreement shall not relieve any party of its liability arising from or incident to Goods and Services performed under this Agreement, or breach of any of the terms hereof, prior to the effective date of the termination of this Agreement. Termination does not terminate or affect the rights or obligations under Sections 7, 8, 9, 10, 11, 12 or 14, which rights and obligations shall survive indefinitely unless otherwise provided therein. 11.4 Termination Without Cause. The Company may terminate this Agreement, without cause, upon at least thirty (30) days prior written notice. Termination of this Agreement shall not relieve any party of its liability arising from or incident to Goods and Services performed under this Agreement, or breach of any of the terms hereof, prior to the effective date of the termination of this Agreement. Termination does not terminate or affect the rights or obligations under Sections 7, 8, 9, 10, 11, 12 or 14, which rights and obligations shall survive indefinitely unless otherwise provided therein. 12. Miscellaneous. 12.1 Non-Solicitation. (a) During the Term of this Agreement (including any renewal or extension thereof) and for a period of one (1) year after this Agreement terminates, Customer shall not, for its own account, or for the benefit of any other person or legal entity, directly or indirectly through one or more intermediaries: (b) employ, solicit for employment or advise or recommend to any other person or legal entity that such other person or legal entity, employ, or solicit the employment of any employee of the Company unless through no actions of Customer, directly or indirectly, such employee is no longer an employee of the Company; (c) solicit or induce, or in any manner attempt to solicit or induce, any client, customer, or supplier of the Company to cease being a client, customer, or supplier of the Company or to divert any business of such client, customer, or supplier from the Company; or (d) otherwise interfere with, disrupt or attempt to interfere with or disrupt, the relationship, contractual or otherwise, between the Company and any of its customers, clients, suppliers, consultants, or employees. 1.2 Notices. Any notice, request, instruction, correspondence or other document to be given hereunder by any party hereto to another (herein collectively called “Notice”) shall be in writing and delivered in person or by courier service requiring acknowledgement of receipt or mailed by certified mail, postage prepaid and return receipt requested, or by telecopier or by e-mail, to the applicable address in the Quotation: Notice given by personal delivery or courier shall be effective upon actual receipt. Notice given by mail shall be effective upon actual receipt. Notice given by e-mail shall be effective upon actual receipt if received during the recipient's normal business hours, or at the beginning of the recipient's next business day after receipt if not received during the recipient's normal business hours. Any party hereto may change any address to which Notice is to be given to it by giving Notice as provided above of such change of address. 1.3 Choice of Law. This agreement shall be governed and construed in accordance with the laws of the State of Texas, regardless of the application of conflicts of law which would direct the application of the law of a different jurisdiction. 1.4 Assignment. Neither party may assign or sublet this Agreement or any part thereof, without the written consent of the other party. It is agreed, however, that the Company shall have the right to assign all or any part of the payments due, or which may become due, by virtue of the Goods and Services. 1.5 Severable Terms. In the event any provision (or portion thereof) of this Agreement is inconsistent with or contrary to any applicable law, rule, or regulation, said provision (or portion thereof) shall be deemed to be amended to partially or completely modify such provision or portion thereof to the least extent necessary to make it comply with said law, rule, or regulation, and this Agreement as so modified, shall remain in full force and effect. If necessary, this Agreement shall be deemed to be amended to delete the unenforceable provision or portion thereof, in which event such invalidity or unenforceability shall not affect the remaining provisions or application thereof which can be given effect without the invalid portion or application. 1.6 Entirety of Agreement. This Agreement sets forth the entire and complete agreement of the parties hereto as to the subject matter hereof, and supersedes any and all proposals, negotiations, agreements, and representations of the parties hereto prior to the execution hereof, including without limitation, prior drafts or prior versions of this Agreement. This Agreement shall inure to and be binding upon the parties hereto, and their permitted heirs, successors and assigns. 1.7 Construction. The headings and captions herein are inserted for convenience of reference only and are not intended to govern, limit, or aid in the construction of any term or provision hereof. The rights and obligations of each party hereto shall be determined pursuant to this Agreement. It is the intention of the parties hereto that every covenant, term and provision of this Agreement shall be construed simply according to its fair meaning and not strictly for or against any party hereto (notwithstanding any rule of law requiring an agreement to be strictly construed against the drafting party) and no consideration shall be given or presumption made, on the basis of who drafted this Agreement or any particular provision thereof, it being understood that the parties hereto to this Agreement are sophisticated and have had adequate opportunity and means to exercise business discretion in relation to the negotiation of the details of the transaction contemplated hereby and retain counsel to represent their interests and to otherwise negotiate the provisions of this Agreement. 1.8 Amendment. These Terms may be amended or modified by the Company at any time and for any reason. Any such amendment shall become effective fifteen (15) days following Customer’s receipt of notice of such amendment. 1.9 No Third-Person Beneficiaries. Nothing in this Agreement shall entitle any person other than Customer, the Company, and their respective insurers to any claim, cause of action, remedy or right of any kind hereunder. 1.10 Time is of the Essence. Time is of the essence in the performance of this Agreement. 1.11 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile copies of signatures shall constitute original signatures for all purposes of this Agreement and any enforcement hereof.