Master Services Agreement version 2
MASTER SERVICES AGREEMENT
This Master Services Agreement (“Agreement”) is incorporated by reference and forms a material part of the Statement of Work (the “SOW”), by and between Light Networks, LLC (“Light Networks”), a Georgia limited liability company, having its principal offices at 3525 Piedmont Road, Building 6, Suite 315, Atlanta, Ga 30305, and the Client named in the applicable SOW (each a “Party” and collectively “Parties”).
In consideration of the mutual promises, undertakings and covenants herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. SERVICES AND DELIVERABLES.
1.1. Performance. Subject to all terms and conditions of this Agreement, Light Networks agrees to provide and Client agrees to pay for all the fees described therein or elsewhere in this Agreement (“Fees”), (i) the services expressly set forth from time to time in a SOW and such other services as Light Networks may agree to provide form time to time (individually and collectively “Service(s)”), and (ii) the tangible deliverables expressly identified as “Deliverables” from time to time in a SOW (individually and collectively “Deliverable(s)”). (For purposes of certainty, the terms “Service(s)” and “Deliverable(s)” do not include Products (defined at Section 3.1 below) or other products or services of or rendered by third parties, even if provided to Client or billed to Client by Light Networks.) In the event of a conflict between a SOW and the rest of this Agreement, the Agreement will control unless the SOW specifically states that it is intended to prevail over the terms of this Agreement.
1.2. Change Orders. Except as otherwise provided in this Agreement, no additions, deletions, or modifications to the Parties’ obligations as set forth in a SOW will be binding upon either Party unless set forth in a writing signed by both Parties (a “Change Order”). In the event that Client requests any such additions, deletions, or modifications, Client must do so in writing, and Light Networks’ Project Manager will review and analyze such request and inform Client in writing if such a change is accepted and if so, if it would result in an extension of the schedule for Services or additional cost to Client, giving details thereof. A Change Order will become part of the corresponding SOW, and in the event of any conflict between a SOW and any Change Order thereto, or in the event of conflict between Change Orders to a given SOW, the later Change Order will control.
1.3. Project Managers. Each Party will designate an employee of such Party, which employee will have the primary responsibility for communicating with and providing necessary assistance to the other Party (each such employee is a “Project Manager”.) All communications between the Parties will be made or coordinated by such Project Manager. Each Party will notify the other in writing of any replacement of its Project Manager. Client agrees that its Project Manager will be responsible for approving plans and making decisions on behalf of Client and will have authority to act on behalf of and bind Client.
1.4. Subcontractors. The Parties acknowledge that Light Networks may delegate performance of some or all of its obligations under this Agreement to subcontractors; provided, however, that Light Networks will remain fully responsible for the performance of such obligations.
2. ACCEPTANCE. Client will have five (5) business days from the date of delivery of Services or Deliverables (as the case may be) to test and evaluate the Services or Deliverables for conformity with the requirements therefor set forth in the applicable SOW (such requirements are the “Specifications”.) Client will accept each Service or Deliverable (as the case may be) if it materially conforms to the Specifications. If the Services or Deliverables (as the case may be) do not materially conform to the Specifications, then Client will provide a written statement of nonconformity to Light Networks, identifying in detail the basis for the nonconformity, within such five (5) business day period. Light Networks will use reasonable commercial efforts to correct the identified nonconformity and re-deliver such Services or Deliverables (as the case may be) within a period of fifteen (15) business days (or such other period of time as mutually agreed upon in writing) under the same acceptance testing procedure, whereupon the testing and notice of acceptance or rejection procedure described in this Section will be repeated up to three (3) times as necessary, using the same timeframes as described above, measured from the most recent delivery or re-delivery of Services or Deliverables.
Client will be deemed to have accepted the Services and Deliverables (i) if Client gives written notice of acceptance of the Services and Deliverables, (ii) if Client fails to provide a written statement of nonconformity to Light Networks within five (5) business days after the most recent delivery or re-delivery of Services or Deliverables (as the case may be), or (iii) if Client utilizes the Services or Deliverables in a live commercial or production environment or makes any use thereof other than as strictly necessary for testing under this Section.
Light Networks will not be deemed to be in breach of this Agreement with respect to given Services or Deliverables (as the case may be) which fail to conform to the Specifications unless and until Light Networks fails to deliver such Services or Deliverables (as the case may be) which materially conform to the Specifications after three (3) attempts to correct the same nonconformity. In the event Light Networks fails to deliver Services or Deliverables (as the case may be) which materially conform to the
Specifications after three (3) attempts to correct the same nonconformity, Client’s sole and exclusive remedy with respect to the nonconforming Services or Deliverables (as the case may be) will be to terminate the applicable SOW and receive a refund of Fees directly attributable to the nonconforming Services or Deliverables.
3.1. Products. “Product(s)” means, individually and collectively, hardware or services, or licenses in software, marketed, distributed, provided, sold or licensed by third parties that Light Networks agrees to procure for or resell to Client under this Agreement. From time to time, Light Networks may agree to procure for or sell to Client Products to the extent set forth in a SOW or in an order form or other written document (”Order Form”) agreed to by the Parties. (In other cases, a SOW or Order Form may provide that Light Networks will bill and collect for (or perform similar intermediary functions with respect to) Products to be provided directly by a Third Party Vendor (defined below). Each Order Form will become part of this Agreement and, in the event of a conflict between such Order Form and the rest of this Agreement, the Agreement will control unless the Order Form specifically states that it is intended to prevail over the terms of this Agreement.
3.2. Title; Risk of Loss. Title to and ownership of each hardware Product sold by Light Networks (but not services or Products licensed) passes to Client from Light Networks or the third party manufacturer, vendor or proprietor thereof (“Third Party Vendor”) (as applicable) when the applicable Fees are paid in full. Risk of loss to the Products passes to Client upon delivery to the Client. Client will insure the Products for their full replacement value until the applicable Fees are paid in full. Delivery may be made in lots. Client grants Light Networks a security interest in and to the Products sold hereunder as security for performance of Client’s payment obligations. Client will execute a UCC financing statement at Light Networks’ request, along with any other documents deemed necessary by Light Networks to perfect such security interest, and Light Networks may file the Agreement (together with any attachments thereto and any other documents) to perfect such interest. Upon any default or breach by Client of its payment obligations, Light Networks will have the right to repossess the Products as well as all rights and remedies of a secured party under the Uniform Commercial Code.
3.3. Licenses in Products; “Billed” Products. To the extent that the Products consist of subject matter that is licensed to Client (including software or firmware embodied in Products) or Light Networks is merely billing and collecting for (or performing similar intermediary functions with respect to) Products to be provided directly by a Third Party Vendor, Client agrees that, notwithstanding Section 3.2 all licenses and rights of Client with respect to such Products, and any warranties, support and indemnifications with respect thereto, if any, will be governed by the terms and conditions of the separate license or other terms for such Products between Client and the Third Party Vendor. Such terms will exist solely and directly between Client and the Third Party Vendor, and Client will be solely responsible for compliance with and maintenance of, all applicable licenses and other rights, obligations, terms and conditions with respect thereto. In the event that any of the Products purchased or licensed by Client are subject to shrink-wrap, on screen or similar license or other terms that must be accepted during any installation or configuration Service performed for Client by Light Networks, Client authorizes Light Networks to accept the terms of such agreements on its behalf. Light Networks will not be deemed a party to, or have any liability with respect to, such terms, and such terms are not part of this Agreement.
3.4. Product Warranties. To the extent the Product(s) come subject to one or more valid warranties provided by the Third Party Vendor that run to the benefit of the end purchaser or user, Light Networks will provide all such warranties with such Products. If such warranties run to the benefit of Light Networks, Light Networks will assign, and does assign such warranties, to Client, to the extent permitted by such Third Party Vendor or by applicable law. Light Networks will have no liability to Client with respect to or under such warranties or for any support or indemnification obligations with respect to Products. As between Light Networks and Client, all Products are deemed accepted upon delivery thereof, and Client waives the right to revoke acceptance, but this does not waive any rights Client may have with respect to the Third Party Vendor. THE PRODUCTS ARE NOT DESIGNED OR MANUFACTURED BY LIGHT NETWORKS AND LIGHT NETWORKS ITSELF MAKES NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS.
3.5. Returns. To the extent Light Networks elects to accept any return of Products, Light Networks may charge, and Client shall pay, a restocking fee in the amount of twenty percent (20%) of the total Fees for the returned Product. Title to any returned Products shall pass to Light Networks, free and clear of all security interests, liens and encumbrances, upon return thereof to Light Networks. All returns are subject to compliance with Light Networks’ then-current standard RMA procedures and policies, and Client shall remain liable for one hundred percent (100%) of the total Fees for any returned Products that are not received by Light Networks in the same condition as delivered to Client.
4. COMPENSATION AND PAYMENT TERMS.
4.1. Fees. Client agrees to pay the Fees. Light Networks’ Fees for Services or Products specified in a given SOW or Order Form will be set forth in the SOW or Order Form, and Fees for any Services not specified in the SOW will be billed at, and Client shall pay for such Services at, Light Networks’ then-current time-and-materials rates (except where other rates have been agreed to by Client and Light Networks).
4.2. Expenses. In addition to payment of the Fees, Client will reimburse Light Networks for all reasonable out-of-pocket expenses incurred in its performance hereunder and for any expenses incurred at the written request of Client (collectively “Expenses”). Expenses will include, without limitation, travel, shipping, meals, and lodging.
4.3. Payment, Invoices. All amounts due hereunder will be paid in U.S. Dollars. Light Networks will invoice Client for Fees and Expenses at the intervals indicated herein or in a SOW. Unless otherwise provided in the SOW, billing for fixed price engagements will be invoiced monthly in advance, and billing for hourly or other variable rate engagements shall be invoiced monthly in arrears. Payment will be due within thirty (30) days of the date of the invoice, and invoices which remain unpaid thirty (30) days after receipt of same by Client will accrue interest at a rate which is the lesser of one and a half percent (1.5%) per month or the maximum interest rate otherwise allowed by law until paid in full. Expenses will be included on an invoice only to the extent that the actual amount of Expenses is known to Light Networks at the time the invoice is issued, and Expenses for which an actual amount is not known to Light Networks at the time an invoice is issued may be included on subsequent invoices. Unless otherwise agreed in writing by the Parties, the failure of Light Networks to include earned or incurred Fees or Expenses on a given invoice will not relieve Client of its obligation to pay such Fees or Expenses. Unless expressly set forth herein or in the applicable SOW, all Fees are non-cancelable and non-refundable. In the event of litigation or collection activity arising out of Client’s non-payment, Light Networks will be entitled to reasonable costs and expenses of collection, including attorneys’ fees. Light Networks reserves the right to suspend performance if Client is in arrears in payment.
4.4. Taxes. The Fees and all other amounts due to Light Networks as set forth in this Agreement are net amounts to be received by Light Networks, and are exclusive of, and Client will be responsible for and promptly pay, all sales, use, excise, value-added or similar taxes, assessments, or duties (or other similar charges) imposed by any government agency with respect to this Agreement (excluding taxes imposed on Light Networks’ net income.)
4.5. Disputed Amounts. If Client disputes any invoiced amount, then Client will pay the undisputed portion by the original due date and notify Light Networks in detail in writing as to the grounds for the dispute. The Parties will work together in good faith to resolve the dispute and, in the event the Parties have not resolved a given dispute within thirty (30) calendar days (or such longer period as may be agreed upon), then the Parties may submit the dispute to the dispute resolution procedures described in Section 12.1
5.1. Term; Termination. The term of this Agreement will begin upon the Effective Date of this Agreement and will continue until i) terminated by either Party upon ten (10) days’ prior written notice to the other Party if there are no outstanding obligations of either Party under a then-current SOW or Order Form (provided, however, that a Party may terminate this Agreement pursuant to this subsection (i) only if such Party is not then in breach of any provision of this Agreement), or ii) terminated in accordance with this Section. Subject to the terms of this Agreement, either Party may terminate this Agreement or a given SOW or Order Form at any time upon giving written notice as follows: (a) in the event that the other Party materially breaches this Agreement or such SOW or Order Form and fails to correct the breach (1) with respect to breaches of obligations of confidentiality or of a license granted hereunder or failure to pay applicable Fees, within ten (10) calendar days after written notice specifying the breach, and (2) with respect to all other material breaches of this Agreement or such SOW or Order Form, within thirty (30) days after written notice specifying the breach; or (b) in the event that the other Party makes an assignment for the benefit of creditors, or commences, or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws of debtor’s moratorium.
5.2. Effect of Termination. Within five (5) business days after the effective date of termination or expiration of this Agreement for any reason whatsoever, Client shall pay Light Networks all Fees and Expenses earned or incurred by Light Networks under any SOW or Order Form through the date of termination (to the extent not previously paid by Client), specifically including amounts for work in progress at the time of termination or expiration, calculated at Light Networks’ then-current time and materials rates (except where other rates have been agreed to by Client and Light Networks), together Client paying any unpaid fees covering the remainder of the applicable term set forth in each such applicable SOW to the extent permitted by applicable law. Unless the Parties agree otherwise in writing, termination or expiration of this Agreement for any reason whatsoever will also serve to terminate all Statements of Work and Order Forms. Additionally, all rights and licenses granted by Light Networks hereunder (unless such licenses have been stated in this Agreement to be perpetual) will immediately cease and be terminated and all property (including Confidential Information) of each Party that is in the possession of the other Party will be returned to its owner. Notwithstanding the foregoing, in the event of termination of this Agreement or any portion thereof (including any license granted hereunder) by Light Networks due to breaches of obligations of confidentiality or of a license granted hereunder or failure to pay applicable Fees and Expenses, all rights and licenses granted by Light Networks hereunder will immediately cease and be terminated, even if such licenses have been stated in this Agreement to be perpetual. Termination of this Agreement will not relieve Client of its obligation to pay all Fees and Expenses that are owed by Client under this Agreement as of the termination. The provisions of Sections 3.3, 3.4, 4, 5.2, 6.2, 8, 10, 11 and 12 will survive termination or expiration of the Agreement for any reason whatsoever.
6. CLIENT OBLIGATIONS.
6.1. Cooperation; Information. In addition to all other obligations of Client hereunder, Client agrees that it will cooperate with and assist Light Networks to the extent necessary in the provision of the Services, Deliverables and Products and will provide any resources of Client reasonably necessary for Light Networks’ performance hereunder. Client expressly acknowledges and agrees that proper provision of the Services, Deliverables and Products is dependent upon the provision to Light Networks by Client of timely and accurate information regarding i) Client’s needs and expectations, and ii) all operational, business or other data which is relevant to the provision of the Services, Deliverables and Products, and Client agrees to provide Light Networks with all such information and data on a timely and accurate basis. The Parties expressly agree that Light Networks’ obligations and warranties hereunder are expressly conditioned on Client’s performance under this Section 6. CLIENT WILL CREATE AND MAINTAIN COMPLETE, UP-TO-DATE BACKUPS OF CLIENT’S DATA AND PROGRAM FILES. Without limiting the Client obligations set forth in the preceding sentence, Client further understands, acknowledges and agrees that Company does not retain Customer Data (as defined below) or configuration information for the purposes of retrieval or migration beyond the last contracted service date unless otherwise agreed upon in writing or specified specifically in an individual service guide or SOW. Light Networks will not be responsible for any loss or corruption of Client’s data, “downtime”, loss or corruption of other software program files associated with the provision of Services, whether arising in contract, tort, negligence, strict liability or otherwise, except for the willful destruction of Client’s data or program files by Light Networks. For the purposes of this Agreement, the term “Customer Data” shall mean data created or received by Client and stored using the Services.
6.2. Client-Supplied Materials. Client expressly agrees and acknowledges that i) in the course of performance, Light Networks may access, utilize and, upon Client request, copy, adapt, modify and prepare derivative works of, the Client-Supplied Materials (as defined herein) and ii) the Deliverables may consist, in whole or in part, of derivative works of Client-Supplied Materials, and Client hereby grants to Light Networks and its agents and subcontractors an irrevocable license, for the term of this Agreement, to do any and all of the foregoing. Client hereby represents, warrants and covenants to Light Networks that (a) Client has secured or will secure from all owners or proprietors of any and all Client-Supplied Materials, prior to delivering or making available such Client-Supplied Materials to Light Networks, all rights in, and consents of third parties with respect to, such Client-Supplied Materials reasonably necessary for Light Networks and its agents, and subcontractors to lawfully perform the Services and create the Deliverables and to do all acts related thereto described in this Agreement or in any SOW (including exercising any licenses granted hereunder); and (b) Client will maintain all rights and consents set forth at subsection (a) throughout the term of this Agreement. For purposes of this Agreement, “Client-Supplied Materials” means any materials, data or information which Client, from time to time during the term of this Agreement, delivers or makes available to Light Networks and that are utilized in connection with, or incorporated into, the Services and/or Deliverables, including without limitation, confidential information, trade secrets, copyrights, trademarks, patentable subject matter or intellectual property of Client or of third parties. Client will defend, indemnify and hold harmless Light Networks and its successors or assigns, affiliates, subsidiaries, officers, directors, employees, agents, and independent contractors against any and all claims, liability, loss, damage, or harm (including without limitation reasonable legal and accounting fees) suffered by any of them arising from or in connection with a claim by any third party that the Client-Supplied Materials or the use thereof in accordance with this Agreement infringes any right of such third party.
6.3. Insurance. Client shall maintain, at its sole cost and expense, all insurance reasonably required in connection with this Agreement or any Statement of Work, including but not limited to, workers compensation and general liability. Client agrees to maintain a general liability policy with a limit not less than $2,000,000 per occurrence, and $100,000 property damage liability. In addition to the foregoing and without limitation thereof, Client covenants and agrees that it shall maintain cyber security and/or cyber liability insurance in an amount not less than $1,000,000 per occurrence. All of the insurance policies described herein shall not be canceled, materially changed or renewal refused until at least thirty (30) calendar days written notice has been given to the Company pursuant to the notice provisions set forth herein. The required insurance coverage shall be issued by an insurance company duly authorized and licensed to do business in the State of Georgia with the following minimum qualifications in accordance with the latest edition of A.M. Best’s Insurance Guide: Financial Stability B+ to A+. Client shall name Company as an additional insured under any such insurance policy(ies), and all such insurance policy(ies) shall include waiver of subrogation in favor of Company shall provide a certificate evidencing the foregoing within five (5) days from the Effective Date.
7. WARRANTIES. Light Networks warrants that the Services and Deliverables will be provided in a workmanlike and professional manner in material conformity with applicable Specifications. Except for the foregoing and as expressly set forth in a SOW, the Services and Deliverables are provided as-is, where-is, with no representations or warranties of any kind (whether express or implied, including those warranties of fitness for a particular purpose). NEITHER COMPANY NOR ANYONE ASSOCIATED WITH COMPANY REPRESENTS OR WARRANTS THAT THE SERVICES AND DELIVERABLES WILL BE RELIABLE, ERROR-FREE, INTRUSION PROOF OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICES WILL OTHERWISE MEET THE NEEDS OR EXPECTATIONS OF CLIENT OR ANY OF ITS CUSTOMERS. Upon breach of the warranty contained in this Section, (i) Client’s sole and exclusive remedy will be to require Light Networks to exercise its best efforts to repair or replace the nonconforming portion of the Services or Deliverables, and (ii)
Light Networks’ obligation will be limited to exercising its best efforts to repair or replace the nonconforming portion of the Services and/or Deliverables. This warranty will not apply with respect to any alleged failure or defect in the Services or Deliverables that is not reported to Light Networks in writing within thirty (30) days after the performance of the applicable Services or delivery of the applicable Deliverable (as the case may be.) Anything in this Agreement, any Order Form or any SOW to the contrary notwithstanding, Light Networks will not be deemed in breach of any representation or warranty under this Agreement where the alleged breach arises from or in connection with (a) Client-Supplied Materials, (b) Client’s breach of this Agreement, (c) any use by Client of any Services or Deliverables other than in accordance with this Agreement, the Specifications and all applicable laws, rules and regulations, (d) any use by Client of any Services or Deliverables in combination with any other product or service not supplied or provided by Light Networks, or (e) any changes or modifications to any Services or Deliverables by any person or entity other than by Light Networks. THE WARRANTIES IN THIS SECTION ARE IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES BY LIGHT NETWORKS, EXPRESS OR IMPLIED, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, WITH RESPECT TO THE SERVICES OR ANY DELIVERABLE OR PRODUCT, AND ALL SUCH REPRESENTATIONS AND WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED.
8. INDEMNIFICATION. Subject to all terms and conditions of this Section and the limitations contained in Section 9 below, Light Networks will indemnify and hold harmless Client against (i) damages arising from the gross negligence or willful misconduct of Light Networks and its successors or assigns, affiliates, subsidiaries, officers, directors, employees, agents, and independent contractors in the provision of the Services under an SOW or this Agreement, and (ii) claims asserted against Client by a third party that a Deliverable infringes a valid U.S. patent, copyright, trademark or trade secret. Light Networks’ obligations set forth in this Section only apply if and to the extent: i) Client provides Light Networks notice of such claim upon which Client intends to base a claim of indemnification hereunder within thirty (30) days of the claim; ii) Light Networks is given sole control of the defense and all related settlement negotiations relating to such claim or action; iii) Client provides reasonable assistance and cooperation to enable Light Networks to defend the action or claim hereunder; and iv) the claim does not arise out of or in connection with (a) Client-Supplied Materials, (b) Client’s breach of this Agreement, (c) any use by Client of any Services or Deliverables other than in accordance with this Agreement, the Specifications and applicable laws, rules and regulations, (d) any use by Client of any Services or Deliverables in combination with any other product or service not supplied or provided by Light Networks or required by Light Networks in writing, (e) any changes or modifications to any Services or Deliverables by any person or entity other than by Light Networks, or (f) continued use by Client after Light Networks has made available a non-infringing replacement for such Service and/or Deliverable. If Light Networks determines that a Deliverable is likely to, or if a Deliverable is determined in a final, non-appealable judgment by a court of competent jurisdiction to, infringe a U.S. patent, copyright, trademark or trade secret, Light Networks will have the option, in Light Networks’ sole discretion, to elect one or more of the following: (1) replace such Deliverable or secure the rights necessary for Client to continue using such Deliverable without infringement; (2) modify such Deliverable to make it non-infringing; or (3) remove such Deliverable, terminate the applicable licenses, and, if Light Networks is or would be obligated to indemnify Client against such infringement under this Section, refund an equitable portion of the fees paid to Light Networks by Client for the Deliverable. This Section states Light Networks’ entire liability and Client’s exclusive remedy for any claim of infringement with respect to the Services and/or Deliverables.
9. LIABILITY. ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, THE LIABILITY OF LIGHT NETWORKS FOR ANY LOSSES OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FROM ANY CAUSE WHATSOEVER, INCLUDING WITHOUT LIMITATION ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT OR STRICT LIABILITY, WILL BE LIMITED TO ACTUAL, DIRECT DAMAGES INCURRED BUT IN NO EVENT WILL EXCEED THE TOTAL FEES AND EXPENSES ACTUALLY RECEIVED BY LIGHT NETWORKS, FOR THE PRODUCTS, SERVICES OR DELIVERABLES THAT GAVE RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE MOST RECENT ACT OR OMISSION GIVING RISE TO SUCH LIABILITY OCCURRED. UNDER NO CIRCUMSTANCES WILL LIGHT NETWORKS BE LIABLE FOR LOST PROFITS OR OTHER CONSEQUENTIAL DAMAGES, COVER DAMAGES, SPECIAL DAMAGES, GENERAL DAMAGES, INCIDENTAL DAMAGES, INDIRECT DAMAGES, OR EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF LIGHT NETWORKS WAS ADVISED OF THE POSSIBILITY OF SAME, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FROM ANY CAUSE WHATSOEVER. WITHOUT LIMITING THE FOREGOING, CLIENT FURTHER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT COMPANY SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY ANY UNAUTHORIZED ACCESS, COMPROMISE OR INTRUSION (INCLUDING, WITHOUT LIMITATION, HACKS AND CYBERSECURITY INTRUSION CAMPAIGNS), OR ANY ACTIONS OR ACTIVITIES ORIGINATING FROM OR ATTRIBUTED TO THE COMPANY OR THIRD PARTIES (INCLUDING, WITHOUT LIMITATION, ADVANCED PERSISTENT THREAT ACTORS AND GOVERNMENT-SPONSORED OR AFFILIATED ACTORS), A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL OR MALICIOUS CODE THAT MAY INFECT CLIENT’S COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA NETWORK OR OTHER PROPRIETARY MATERIAL RESULTING FROM CLIENT’S USE OF THE SERVICES OR DELIVERABLES, OR THE SERVICE OR ITEMS PURCHASED OR OBTAINED THROUGH ANY THE WEBSITE OR THE SERVICE OR TO CLIENT’S DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT. NEITHER COMPANY NOR ANY PERSON ASSOCIATED WITH COMPANY MAKES ANY WARRANTY OR REPRESENTATION TO ANY USER WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, FUNCTIONALITY OR AVAILABILITY OF THE SERVICES. THE LIMITATIONS SET FORTH IN THIS SECTION 9 SHALL NOT APPLY TO LIABILITIES THAT CANNOT BE DISCLAIMED OR LIMITED BY LAW. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, THE REMEDIES OF CLIENT ARE LIMITED TO THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT. THE LIMITATIONS AND EXCLUSIONS IN THIS
AGREEMENT WILL CONTINUE TO APPLY EVEN IN THE EVENT A WARRANTY OR REMEDY FAILS OF ITS ESSENTIAL PURPOSE. NO ACTION ARISING OUT OF THIS AGREEMENT, REGARDLESS OF FORM, MAY BE BROUGHT BY CLIENT AGAINST LIGHT NETWORKS MORE THAN ONE (1) YEAR AFTER COMMISSION OF THE ACT OR OMISSION WHICH GAVE RISE TO THE CAUSE OF ACTION.
10. OWNERSHIP; LICENSES.
10.1. Light Networks Preexisting Intellectual Property; License. All rights, title, and interest in the Light Networks Preexisting Intellectual Property will be and remain the exclusive property of Light Networks. “Light Networks Preexisting Intellectual Property” means, individually and collectively, Light Networks’ software, systems, business methods, notes, reference materials, sketches, drawings, Confidential Information, memoranda, documentation, software and records in any form or media that are owned or developed by Light Networks or its licensors prior to, or separately and apart from, this Agreement, including but not limited to all worldwide copyrights, trade secrets, trademark, confidential, and proprietary rights in, and all copies of, any of the foregoing. Client gains no right, license, title, or permission with respect to the Light Networks Preexisting Intellectual Property by virtue of this Agreement except as expressly set forth in this Agreement. If Light Networks delivers any Light Networks Preexisting Intellectual Property to Client in the course of performance under a SOW, then, subject to all terms and conditions of this Agreement (including without limitation the terms of Section 11 and except as provided at Section 10.3 below), Light Networks hereby will be deemed to grant to Client a non-exclusive, personal, nontransferable, nonassignable, non-sublicenseable, license to permit Client to use the Light Networks Preexisting Intellectual Property only in connection with the Services and only during the term of such SOW.
10.2. Ownership of Work. Except as expressly provided otherwise in Section 10.3 or in a SOW, as between the Parties, exclusive title to and ownership of any work product generated, developed or delivered by Light Networks in the course of its performance hereunder (including without limitation notes, reference materials, sketches, drawings, memoranda, documentation, inventions, know-how and business processes, software and records in any form or media and all copies of any of the foregoing – but excluding any Client Confidential Information) (individually and collectively “Work”) will vest in Light Networks. To the extent that any right or title to any part of the Work does not vest in Light Networks in accordance with the foregoing, Client hereby assigns to Light Networks or its designee, to the fullest extent permitted by law, all title to and ownership of the Work (including without limitation ownership of all copyrights in all copyrightable subject matter therein).
10.3. Ownership of Deliverables; License . Upon Client’s acceptance and payment in full of all Fees and Expenses under the applicable SOW, and subject to all terms and conditions of this Agreement, Client will own the Deliverables provided under such SOW as “works made for hire” under applicable law and, to the extent that any right or title to any part of such Deliverables does not vest in Client in accordance with the foregoing, Light Networks hereby assigns to Client or its designee, to the fullest extent permitted by law, all title to and ownership of such Deliverables (including without limitation ownership of all copyrights in all copyrightable subject matter therein). Notwithstanding the foregoing, nothing in this Section will be deemed to grant Client ownership of any Light Networks Preexisting Intellectual Property or other Work that is not a Deliverable hereunder, even if and as incorporated into a Deliverable; however, to the extent that the Deliverable incorporates any Light Networks Preexisting Intellectual Property or any other Work that is not a Deliverable hereunder, then, upon Client acquiring ownership of the applicable Deliverable as provided above, Light Networks hereby will also be deemed to grant to Client a non-exclusive, personal, nontransferable, nonassignable, non-sublicenseable, perpetual, royalty free license to use the applicable Light Networks Preexisting Intellectual Property or Work incorporated in such Deliverable, but only as part of, and in conjunction with, the applicable Deliverable for Client’s internal uses only. All rights not specifically granted to Client hereunder are reserved to Light Networks and Client agrees that it will not make any use of any Light Networks Preexisting Intellectual Property or Work in any manner or for any purpose whatsoever except as expressly permitted by the terms and conditions of this Agreement. Any license granted to Client under this Agreement or under any SOW is terminable upon Client’s breach of the terms of such license or failure to pay all amounts due hereunder.
11. CONFIDENTIAL INFORMATION.
11.1. Restrictions on Use and Disclosure. Light Networks and Client acknowledge that, in the course of performance under this Agreement, each may receive, obtain knowledge of, or become privy to the Confidential Information (as hereinafter defined) of the other Party. Neither Party will disclose to any third party (other than its legal and financial advisors or, in the case of Light Networks as Receiving Party, to Light Networks’ agents and subcontractors, or in connection with enforcement hereof) nor use for any purpose, except to the extent required or permitted for such Party’s performance under or enforcement of this Agreement which includes, without limitation, Light Networks and its contractors and agents, as the case may be, use of any such Confidential Information of Client necessary for or consistent with Light Networks providing the Services contemplated herein or in any applicable SOW, any Confidential Information of the other Party. The Receiving Party will use commercially reasonable efforts to cause all third parties to whom such Party discloses the other Party’s Confidential Information to protect such Confidential Information from disclosure and use to the same extent that the Receiving Party is obligated to protect such Confidential Information hereunder. For purposes of this Section 11, “Disclosing Party” means the Party whose Confidential Information has
been disclosed to the other Party, and “Receiving Party” means the Party who receives, obtains knowledge of, or becomes privy to Confidential Information of the Disclosing Party.
11.2. Confidential Information Defined; Exclusions. For purposes of this Agreement, “Confidential Information” means data and information (regardless of form, whether tangible, intangible, or merely recollected): (i) relating to the business of Disclosing Party, regardless of whether the data or information constitutes a “trade secret” as that term is defined under applicable law; (ii) disclosed to Receiving Party or of which Receiving Party became aware of as a consequence of Receiving Party’s relationship with Disclosing Party; (iii) having value to Disclosing Party; and (iv) not generally known to competitors of Disclosing Party; provided, however, that such term will not mean data or information: (A) which has been voluntarily disclosed to the public by Disclosing Party; (B) which has been independently developed by Receiving Party or others; or (C) that has otherwise entered the public domain or become publicly known through lawful means. Confidential Information may include, but is not limited to, the following types of information and other information of a similar nature (whether or not reduced to writing): trade secrets, discoveries, ideas, concepts, software in various stages of development, designs, drawings, specifications, techniques, models, data, source code, object code, documentation, diagrams, flow charts, research, development, processes, procedures, know-how, marketing techniques and materials, marketing and development plans, names of employees and information related to them, client names, contacts, and other proprietary information related to clients, price lists, pricing policies, and financial data, information and projections. Confidential Information further includes any information described above which the Disclosing Party obtains from another party and which the Disclosing Party treats as confidential or designates as “Confidential Information”, whether or not owned or developed by the Disclosing Party. Light Networks’ Confidential Information expressly includes the Light Networks Preexisting Intellectual Property. These confidentiality obligations will not restrict any disclosure required by order of a court or any government agency, provided that the Receiving Party gives prompt notice to the Disclosing Party of any such order and reasonably cooperates with the Disclosing Party at the Disclosing Party’s request and expense to resist such order or to obtain a protective order.
11.3. Injunctive Relief, Survival. The Receiving Party acknowledges that, upon the breach or threatened breach by the Receiving Party of any provision contained in this Section 11, the Disclosing Party will be without an adequate remedy at law, and would suffer or be threatened with irreparable injury, and that the Disclosing Party will have the right to obtain immediate injunctive relief against the Receiving Party, in addition to all other remedies hereunder, in equity and at law. This Section 11 will survive expiration or termination of this Agreement for any reason whatsoever. Receiving Party’s obligations to maintain Confidential Information as confidential under this Section 11 will continue until such time as such information is no longer confidential or a trade secret under applicable law, and all other obligations under this Section 11 will continue (i) with respect to Confidential Information which constitutes a trade secret under applicable law, until such time as such information no longer constitutes a trade secret under applicable law due to no fault of the Receiving Party, and (ii) with respect to all other Confidential Information, for a period of three (3) years after the date such Confidential Information is disclosed to such Receiving Party. Nothing in this Section 11 will be construed to limit any rights or remedies afforded to the Disclosing Party under any applicable law.
12. GENERAL PROVISIONS.
12.1. Export. In the event that this Agreement permits the exportation of any of the Services, Deliverables or Products outside the U.S., Client will be solely responsible for compliance with all applicable U.S. export laws, rules, and regulations and all applicable laws, rules, and regulations of any jurisdiction(s) to or through which the Services, Deliverables or Products are transmitted, transported or imported. Client agrees to keep such books and records and to take other actions as may be required by such applicable laws, rules, and regulations. Client will defend, indemnify, and hold harmless Light Networks and its successors or assigns, affiliates, subsidiaries, officers, directors, employees, agents, and independent contractors against any and all claims, liability, loss, damage, or harm (including without limitation reasonable legal and accounting fees) arising from or in connection with Client’s failure to comply with any such laws, rules or regulations. All of the foregoing are expressly made third party beneficiaries of this Section.
12.2. Force Majeure. If either Party will be prevented from performing any portion of this Agreement (except the payment of money) by causes beyond its control, such Party will be excused from performance for the period of the delay and the time for such Party’s performance will be extended for a period of time equal to the duration of such delay.
12.3. Construction, Venue, Jurisdiction. Pennsylvania law, without regard to any conflict of law principles, shall govern all matters related to this Agreement including without limitation its validity, interpretation, construction, and performance as well as all claims and causes of action whether arising under contract, tort, or any other legal theory. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply to this Agreement. Any legal suit, action, or proceeding arising out of or based upon/relating to this Agreement or the transactions contemplated hereby shall be instituted in the United States Eastern District of Pennsylvania federal court or state court located in the County of Montgomery, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action, or proceeding in such courts and irrevocably waive
and agree not to plead or claim in any such court that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
12.4. Waiver; Amendment. No waiver of any right or remedy will be valid unless in writing and delivered to the other Party, and waiver of a right or remedy on one occasion by a Party will not be deemed a waiver of such right or remedy on any other occasion. This Agreement may be amended or modified at any time by Light Networks.
12.5. Entire Agreement. This Agreement includes and incorporates all SOWs and Order Forms entered into hereunder and all referenced or attached exhibits, schedules, attachments or documents, and sets forth the entire agreement and understanding between the Parties pertaining to their subject matter, superseding all prior or contemporaneous discussions, agreements, promises or understandings between the Parties pertaining to their subject matter. Any additional or varying terms contained in Client’s preprinted forms, correspondence or other documents transmitted to Light Networks will be of no effect, unless otherwise expressly provided in the Agreement. This Agreement may be executed in multiple counterparts, each of which will be deemed an original and all of which taken together will constitute one and the same Agreement.
12.6. Assignment. This Agreement and the rights and obligations hereunder may not be assigned in whole or in part by either Party without the prior written consent of the other, except that this Agreement may be assigned by a Party to another entity in connection with a reorganization, merger, consolidation, acquisition or other restructuring involving all or substantially all of the voting securities and/or assets of such Party provided written notice of such assignment is provided to the other Party promptly thereafter. Any purported assignment in violation of the foregoing will be null and void. This Agreement will be binding upon, and inure to the benefit of, the Parties, their legal representatives, successors, and permitted assigns as permitted by this Agreement. Nothing in this Agreement will be construed to create any rights enforceable by any person or entity who is not a named Party.
12.7. Notices. Any notices required by this Agreement shall be made in writing and shall be delivered in person, sent by overnight courier, facsimile or by certified mail, return-receipt-requested, to the other Party’s address as it appears in this Agreement or to any other address specified by the receiving party in writing All such notices will be deemed received by the other Party (a) upon delivery if delivered by hand, (b) on the third day after dispatch if sent by registered or certified mail, (c) on the next day after dispatch if sent by overnight courier and (d) on the day of dispatch if sent by facsimile.
12.8. Severability. If any term, clause or covenant of this Agreement shall be unenforceable under such law, courts are authorized to modify and reform such term, clause or covenant to make it enforceable and if such reformation is not possible, such term, clause or covenant shall be deemed ineffective to the extent of such unenforceability and such clause shall be severed from the remainder of this Agreement without invalidating the remainder of any provision containing such clause or the remaining provisions of this Agreement.
12.9. Independent Contractor. The Parties acknowledge that its relationship with the other will be that of an independent contractor, and nothing contained in this Agreement will be construed as establishing any agency, employer/employee relationship, partnership or joint venture between Light Networks and Client.
12.11 Non-Solicitation/Hiring Restrictions. During the term of an active SOW, and for a period of one (1) year thereafter, neither party shall employ, contract with for any service, or solicit for such the other party’s Resources (defined as any employee or independent contractor employed or otherwise engaged by either party during the term who has engaged with the other party in the prior twelve (12) months). In the event that either party breaches this Section, the breaching party shall pay to the non-breaching party, as liquidated damages, a one-time payment in the amount of the greater of (i) 125% of the Resource’s base salary for the first six months of employment with the breaching party, or (ii) 125% of the amount the Resource would have earned in the next six months with the non-breaching party. The parties agree that the payments set forth herein are a reasonable approximation of damages to the non-breaching party and are not a penalty. The foregoing shall not be read in any way to restrict either party from hiring any Resource that is not subject to a restrictive covenant and who responds to a general, publicly available solicitation but is not directed to such solicitation in any way by the party seeking to hire the Resource.
|Light Networks and Client have caused this Agreement to be executed by their respective, duly authorized officers or representatives, effective as of the Effective Date. Light Networks, LLC||Client ________________________|
|Printed Name:||Printed Name:|