MASTER SERVICES AGREEMENT
This Master Services Agreement (“MSA” or “Agreement”) is entered into as of XX/XX/XXXX (“Effective Date”) by and between [Company], a corporation organized under the laws of the State of New York, U.S.A., ("Company"), and [Photographer], a professional photography studio organized under the laws of the state of Virginia having its principal place of business at studio in Virginia.
1. Engagement and Statements of Work. Company engages Consultant to perform services (“Services”) and provide deliverables (“Deliverables”) which are expected to include professional photography, described in Company Purchase Order (“PO”) or Statement of Work (“SOW”) documents executed during the Term by a Consultant and Company representative described in Section 21(b) below. No Company financial obligation will arise without issuance of a PO. Each PO and SOW shall be deemed incorporated into and governed by the terms of this MSA. Conflict between a PO or SOW and this MSA shall be resolved in favor of the MSA except where the PO or SOW expressly state that the MSA is to be overridden. Company may at any time, in writing, make reasonable changes in the work described in a PO or SOW. If any changes cause an increase or decrease in the cost of, or the time required for the performance of, any work under a PO or SOW, an equitable adjustment shall be made in Consultant’s fee or delivery schedule, or both. Any Consultant claim for an adjustment must be asserted within ten (10) days of Consultant’s receipt of the change notification, and must be approved in a written amendment (“Change Order”).
2. Term. The term of this Agreement (“Term”) shall begin on the “Effective Date” and end on XX/XX/XXXX (“Expiration Date”), unless sooner terminated as provided below. If signed after the Effective Date, the MSA shall be deemed retroactive to the Effective Date.
3. Consultant’s Personnel. All persons providing Services under this Agreement are “Consultant’s Personnel.”
(a) Consultant shall list the names of all Consultant’s Personnel in Schedule A hereto, indicating the relationship between Consultant and any person who is not Consultant’s full-time employee. Consultant shall not use any person to render Services who is not listed on Schedule A as approved in writing by Company. Company shall have the right to approve each such Consultant Personnel before assignment to any effort to be undertaken by Consultant, the granting of access to any Company facility and the disclosure of any Company information. All Consultant Personnel participating in the furnishing of any services shall sign a copy of Schedule B hereto, Secrecy and Inventions Agreement, which shall be forwarded to Company by Consultant. Consultant may not subcontract or delegate any Services without Company’s prior written consent.
(b) Except for services anticipated to last less than two consecutive weeks, and services involving plant (i.e., construction, food services, trades-work, etc.) or office (i.e., copier repair, parcel delivery, janitorial, etc.) work as defined by Company, Consultant shall perform the following tasks:
i) If Consultant Personnel will perform work on Company’s site, Consultant shall, before engaging in work and after securing written authorization from all such Personnel, screen against the following lists: [deleted]. No person or entity on any of these lists may provide on-site services to Company. Consultant will also ensure compliance with the U.S. Immigration and Naturalization Service’s I-9 process.
ii) If Consultant Personnel will perform “security sensitive” work, Consultant shall, before engaging in work and after securing written authorization from Consultant’s Personnel, perform, in addition to the above screening, criminal conviction screening consistent with the Guidelines attached hereto as Schedule C. This screening will include the prior seven (7) year period, will include all locations in which Consultant’s Personnel resided and will verify employment details during this period. Contractor shall retain a copy of this report for Company’s inspection for at least one year following placement at a Company worksite. Although Company reserves the right to designate “security sensitive” positions, such positions will typically include those directly related to operation or security of a GE facility, a piece of equipment, an electronic data system and/or a financial/accounting system. Such positions may also include security sensitive worksites and operations critical to Company’s environmental, health, financial or accounting systems.
(c) Consultant shall, after having all Consultant's Personnel sign the Personal Data Consent Form attached hereto as Schedule D, populate and maintain the accuracy of all data regarding Consultant's Personnel in Company’s Database (“CWD”) when that application becomes available. All Consultant Personnel performing more than ten (10) days of service, but excluding those involving plant (i.e., construction, food services, trades-work, etc.) or office (i.e., copier repair, parcel delivery, janitorial, etc.) work as defined by Company must be in the CWD. This activity shall be performed promptly after receiving a PO or SOW, and before Consultant Personnel begin working on a Company project.
4. Compensation. Unless expressly modified in a PO or SOW:
(a) Consultant shall be paid on a time and materials basis according to the Fee Schedule attached hereto as Schedule A, with expenses reimbursed in accordance with the GE Travel Policy attached hereto as Schedule E;
(b) all payment terms under this Agreement will be those reflected upon Company’s standard Purchase Order in use at the time of receipt of any particular, correct invoice from Consultant;
(c) all fees will be paid in U.S. Dollars and delivered to Company’s principal place of business specified in the first paragraph of this Agreement;
(d) any taxes attributable to Services, Deliverables and/or payments made pursuant to this Agreement, including but not limited to all sovereign, state and local sales, use, excise, value added, privilege, payroll, occupational and/or any other taxes, fees or duties, shall be Consultant’s responsibility, and Company may make any withholdings required by law from such payments;
(e) upon termination as provided below, all fees shall be payable on a pro rated daily basis up to the date of termination and no installments shall be payable thereafter;
(f) when any applicable governmental law, rule or regulation makes any payment prohibited or improper or requires the payment of a reduced fee, the portion of the fee so affected shall not be paid or if paid shall be refunded to Company;
(g) Company shall be entitled at all times to set off any amount owing at any time from Consultant to Company in connection with this or any other agreement between Company and Consultant;
(h) the foregoing will be the entire compensation to be paid to Consultant and will be in full discharge of any and all liability in contract or otherwise with respect to all Services rendered by the Consultant and Consultant’s Personnel; and
(i) during the Term and for three (3) years thereafter, Consultant shall, at Company’s request, provide full and complete access during normal business hours to the offices, books and records of Consultant and its accountants for purposes of auditing any performance (including without limit employee screening and environmental compliance), compensation or reimbursement issue under this Agreement.
5. Confidentiality and Intellectual Property Rights.
(a) Definitions. The following terms in this Agreement shall have the following meanings:
(1) “Intellectual Property” means all intellectual property and proprietary rights including without limitation all rights of inventorship and authorship, inventions, patents, patent applications, and know how for any product, process, method, machine, manufacture, design, composition of matter, or any new or useful improvement thereof, as well as copyrights, trademark, trade dress and service mark rights and all rights in trade secrets, computer software, data and databases, and mask works.
(2) “Proprietary Information” means: (a) information which is disclosed to Consultant by Company and identified in writing at the time of disclosure by an appropriate legend, marking or stamp on the face thereof to be Proprietary Information; (b) information transmitted orally or audibly and confirmed as Proprietary Information by a written summary within thirty (30) days after oral or audible transmission; and (c) Technical Information obtained from Company or first produced by Consultant or Company in the performance of this Agreement.
(3) “Technical Information” means technical information and data, whether documented or undocumented, which, if it had been obtained from or first produced by Company, would normally and reasonably be considered proprietary to Company, including without limitation, design, manufacturing, assembly and user maintenance information, drawings, performance specifications, material specifications, procurement specifications, methods, practices, electronic/computer files and computer software, as well as modifications, revisions and improvements to these items. However, Technical Information specifically excludes design standards, methods, practices and computer software developed by Consultant without the use of Company’s funds before Consultant’s activities under this Agreement and which are not required to be delivered to Company under this Agreement or any other written contract between the parties.
(b) Confidentiality. Consultant and Consultant's Personnel shall maintain in confidence and safeguard all Proprietary Information. Consultant recognizes and acknowledges the confidential and proprietary nature of any Proprietary Information and acknowledges the irreparable harm that could result to Company if it is disclosed to a third party, or used for unauthorized purposes, without Company’s prior written consent. Consultant agrees to use any Proprietary Information only for conducting business with Company in a manner contemplated by this Agreement. Consultant will take all reasonable steps to preserve Company's Proprietary Information in confidence and prevent disclosure to third parties. Consultant shall restrict disclosures of any Proprietary Information to only those Consultant Personnel who have a need to know and shall bind such Personnel to obligations of confidentiality consistent with this Agreement. Upon completion or termination of this Agreement or upon request of the Company, Consultant shall promptly return all materials incorporating any such Proprietary Information and any copies thereof.
(c) Information Not Covered. Notwithstanding Section 5(b) above, the parties agree that Consultant's obligations with respect to handling, disclosing, reproducing and using such Proprietary Information are not applicable to any portion(s) of the Proprietary Information which: (1) is in the public domain before receipt by Consultant or after the date of receipt without breach of this Agreement by Consultant; (2) is known, as evidenced by documentation, to Consultant before disclosure by Company; (3) is disclosed with Company’s prior written approval; or (4) is disclosed without restriction to Consultant by a third party having a bona fide right to do so without breach of this Agreement by Consultant; provided that, for purposes of the provisions of this Section 5(c), Proprietary Information shall not be deemed to be available to the public or known to Consultant merely because it may be embraced by a more general disclosure or derived from combinations of disclosures generally available to the public or known to Consultant.
(d) Consultant Information. Knowledge or information of any kind disclosed to Company shall be deemed to have been disclosed without financial or other obligation on the part of Company to hold the same in confidence, and Company shall have full right to use and disclose such information without any compensation beyond that specifically provided by this Agreement.
(e) Ownership of Intellectual Property and Technical Information.
(1) Company Property. Except as provided in Section 5(e)(2) and 5(e)(3) below, Consultant agrees to transfer and assign, and hereby transfers and assigns, to Company and its designees, without further compensation, the entire right, title and interest throughout the world in and to: (a) all Technical Information first produced by Consultant in the performance of this Agreement; (b) all Intellectual Property resulting from Consultant’s activities under this Agreement; (c) all Intellectual Property relating to any Deliverables under this Agreement; and (d) creations and inventions that are otherwise made through the use of Company’s or its affiliates’ equipment, supplies, facilities, materials and/or Proprietary Information. All such Technical Information and Intellectual Property that are protectable by copyright will be considered work(s) made by Consultant for hire for Company (as “works made for hire” is defined in the United States Copyright Act, 17 U.S.C. § 101) and will belong exclusively to Company. If by operation of law any of such Technical Information or Intellectual Property is not owned in its entirety by Company automatically upon creation, Consultant agrees to transfer and assign, and hereby transfers and assigns, same as stated in the first sentence of this Section 5(e)(1). Consultant further agrees to promptly disclose to and assist Company in every proper way to obtain for Company’s benefit, and at Company’s expense, appropriate legal protection for the Technical Information and Intellectual Property transferred and assigned, and to be transferred and assigned, to Company, including without limitation testifying in any legal proceedings, signing all lawful papers, making all rightful oaths and executing all applications, assignments and other instruments.
(2) Consultant’s Property. If Consultant intends to except any Intellectual Property from the assignment in Section 5(e)(1) above, it must list such Intellectual Property on Schedule F hereto, Consultant’s Reserved Intellectual Property, and obtain a Company representative’s signature on Schedule F before incorporating Consultant’s Intellectual Property into the Deliverables under this Agreement. Consultant will own approved “Consultant’s Reserved Intellectual Property” reflected on a properly executed Schedule F. However, Consultant: (a) agrees to escrow object code, source code and all annotations thereto for Consultant’s Reserved Intellectual Property in the manner provided in Section 5(g) below; and (b) grants Company a fully paid, perpetual, irrevocable, world wide, non exclusive license to prepare derivative works from Consultant’s Reserved Intellectual Property (using either Company's own employees or independent contractors), and to reproduce Consultant’s Reserved Intellectual Property and derivative works therefrom, and to make, use, distribute, perform, display and transmit Consultant’s Reserved Intellectual Property and derivative works and reproductions thereof, and to sublicense the rights granted to Company in this paragraph.
(3) Third Party Intellectual Property. Consultant shall not, without Company’s written authorization, disclose or use, in Consultant’s work with the Company, any secret or confidential information of others, nor incorporate into Deliverables to Company under this Agreement: (a) any software, applications, or components or other materials subject to Intellectual Property rights owned by any party (including Consultant) other than Company (“Third Party Intellectual Property”); or (b) any software, applications or components which are functionally dependent upon Company’s use of Third Party Intellectual Property. If Company provides such written authorization, Consultant shall, in the absence of written agreement to the contrary: (a) provide, at no expense to Company, all licenses to such Third Party Intellectual Property and which Company does not already have and which are reasonably necessary for Company to lawfully make all uses of the Deliverables contemplated in this Agreement; and (b) escrow object code, source code and all annotations thereto for such pre approved Third Party Intellectual Property in the manner provided in Section 5(g) below.
(f) Publicity. In addition to the other confidentiality obligations under this Agreement, Consultant shall not make any announcement, take or release any photographs (except for its internal operation purposes for performing the Services and creating the Deliverables) or release any information concerning this Agreement or any part thereof or with respect to its business relationship with Company, to any member of the public, press, business entity or any official body except as required by applicable law, rule, injunction or administrative order, unless prior written consent is obtained from Company. If Consultant determines it is obligated by law or a governmental authority to make any such announcement or release, Consultant shall promptly notify Company and cooperate with Company to ensure that suitable confidentiality obligations are afforded such information.
(g) Escrow of Code. Consultant agrees to deposit in escrow with an escrow agent designated by Company a copy of the object code, source code and all annotations thereto for all Deliverables under this Agreement, pursuant to a written escrow agreement to be approved by Company in writing. The escrow agreement shall provide, inter alia, that in the event this Agreement is terminated for insolvency or default as provided in Sections 13(d) or 13(e) below, the escrowed code shall be delivered to Company. Company is hereby granted a license to use the code, when delivered to repair, modify, improve upon and use the Deliverables under his Agreement as contemplated under this Agreement, including but not limited to the rights to reproduce, prepare derivative works, distribute, perform, display and transmit.
(h) System Monitoring. Consultant agrees that the Company may, at any time, without further consent, access and monitor any usage by Consultant or its Personnel of any Company information, systems and resources, including without limitation: computers, computer software, electronic mail, online services, voicemail, facsimile machines, telephones and photocopiers.
(i) Personal Data Provided to Consultant. Many jurisdictions impose restrictions on the processing of “personal data”, which is generally defined by law to include the name, address, email address and telephone number of an individual, as well as any other information (such as an evaluation of an individual’s performance) attributable to an individual. Such restrictions often include a requirement to extend restrictions of local law extraterritorially in exchange for the right to transmit the personal data extraterritorially. Consultant agrees that if it is provided any such “personal data” relating to Company’s employees, contingent workers, suppliers, customers or other individuals under this Agreement, Consultant will use such information only for the purposes of fulfilling its contractual obligations to Company, and will take all reasonable steps to prevent access to such personal data by third parties and by Consultant’s employees and subcontractors who do not have a reasonable need to know it. Consultant further agrees that it will abide by any additional restrictions on such personal data of which Company provides Consultant notice.
6. Physical Property. Unless otherwise agreed in writing, all tools, equipment or material furnished to Consultant or specially paid for by Company, and any replacement thereof, or any materials affixed or attached thereto, shall be and remain Company’s personal property. Such property shall be plainly marked as Company’s property and shall be safely stored separate and apart from Consultant's property. Consultant shall not substitute any Company property without Company’s written approval. Such property, while in Consultant's custody or control, shall be held at Consultant's risk, shall be kept insured by Consultant at Consultant's expense in an amount equal to the replacement cost with loss payable to Company and shall be subject to removal at Company's written request, in which event Consultant shall prepare such property for shipment and shall redeliver to Company in the same condition as originally received by Consultant, reasonable wear and tear excepted, all at Consultant's expense.
7. Inspections, Testing and Acceptance.
(a) All Services and Deliverables shall be subject to inspection and test by Company and any of its customers at all times and places. Consultant must follow coding and testing standards and must pass quality assurance standards provided by Company.
(b) Consultant shall provide and maintain an inspection and process control system acceptable to Company covering the Deliverables hereunder. Records of all inspection work by Consultant shall be kept complete and made available to Company and any of its customers during the Term. Consultant will allow representatives of Company and its customers access to the facilities involved in performing this Agreement in order to assess: (1) work quality; (2) conformance with Company’s specifications; and (3) conformance with Consultant’s representations, warranties and covenants in this Agreement. Consultant shall, without additional charge, provide all reasonable facilities and assistance for the safety and convenience of the inspectors in the performance of their duties.
(c) Acceptance or rejection of Deliverables shall be made as promptly as practical after delivery, but failure to inspect and accept or reject Deliverables or failure to detect defects by inspection, shall neither relieve Consultant from responsibility for all Deliverable requirements nor impose liabilities on Company for its failure to identify such defects.
(d) If any of the Deliverables and/or Services under this Agreement are found at any time to be defective, or otherwise not in conformity with the requirements of this Agreement, including any applicable specifications, Company, in addition to such other rights, remedies and choices as it may have by agreement and/or by law, at its option and sole discretion may at Consultant’s expense: (1) reject and return such Deliverables; (2) take such actions as may be required to cure all defects and/or bring the Deliverables into conformity with all requirements; and (3) require Consultant to re perform any defective portion of the Services performed. Consultant must replace non conforming Deliverables with conforming Deliverables.
(a) Consultant warrants and represents that:
(1) Deliverables and Services will be in strict accordance with the specifications, designs and other requirements (including performance specifications) approved or adopted in any PO or SOW;
(2) Services will be performed in a competent and professional manner in accordance with the highest standards and best practices of Consultant’s industry;
(3) all Deliverables and Services sold will be free of any claims of any nature and by any third person, including but not limited to claims of Intellectual Property infringement, and that Consultant will convey clear title to Company; and
(4) all Deliverables and Services will be of merchantable quality, free from all defects in design, workmanship and material and will be fit for the particular purpose for which they are purchased;
(5) it shall perform all activities in compliance with all applicable national, state and local environmental, health and safety laws and regulations and take appropriate actions to provide a safe and healthy workplace and to protect local environmental quality;
(6) each chemical substance constituting or contained in goods sold or otherwise transferred to Company is on the list of chemical substances compiled and published by the Administrator of the U.S. Environmental Protection Agency pursuant to the Toxic Substances Control Act, 15 U.S.C § 2601, et seq., as amended and the European Inventory of Existing Commercial Chemical Substances (EINECS) or the European List of Notified Chemical Substances (ELINCS) or equivalent lists in any other jurisdiction which Company informs Consultant the goods will likely be shipped; and
(7) Deliverables supplied under this Agreement may be exported worldwide, including to countries which forbid the importation of products manufactured with child labor or with forced, indentured or convict labor.
(b) The warranties in Section 8(a) shall apply for a period of twenty—four (24) months from the date Consultant completes its engagement. In the event of a breach of warranty, Consultant shall, at its cost and expense, re perform any defective Services and correct and replace any non compliant Deliverables. Any attempt by Consultant to limit, disclaim or restrict any such warranties or any remedies of Company, by acknowledgment or other wise, in accepting or performing this Agreement, shall be null, void and ineffective without Company's written consent.
9. Indemnities and Insurance.
(a) General. Consultant shall take all necessary precautions to prevent the occurrence of any injury to persons or to property during the progress of work and ensure that its Personnel neither pose a threat to Company’s safe work environment nor the integrity of its business operations. Except to the extent that any injury or damage is due solely and directly to Company, Consultant shall release, defend, hold harmless and indemnify Company, its directors, officers, employees, agents, representatives, successors and assigns, whether acting in the course of their employment or otherwise, against any and all suits, actions or proceedings, at law or in equity, and from any and all claims, demands, losses, judgments, damages, costs, expenses or liabilities, including without limitation claims for personal or property damage, resulting from or in any way connected with any act or omission of Consultant’s Personnel, Consultant, its agents, employees or subcontractors in connection with, but not limited to, all of the representations, warranties or covenants contained in this Agreement. In addition, Consultant shall indemnify, defend and hold Company harmless from and against any claims, costs or expenses, including, but not limited to, reasonable attorneys' fees, arising out of or in connection with any employment claims, i.e., workers compensation, harassment or discrimination claims, or breach of Sections 5(b) or 11 or Schedule B hereto by Consultant or Consultant's Personnel. Consultant agrees to include this clause in all related subcontracts.
(b) Intellectual Property. Consultant shall indemnify, defend and hold Company harmless from any suit or proceeding brought against Company or its customers based on any claim that any Services, systems, article or apparatus, or any part thereof constituting Services and/or Deliverables furnished under this Agreement, as well as any device or process necessarily resulting from the use thereof, constitutes an infringement of any patent, copyright or other Intellectual Property right. If notified promptly in writing and given authority, information and assistance, at Consultant's expense, for the defense of same, Consultant shall pay all damages, costs and expenses incurred or awarded therein, including, but not limited to, reasonable attorneys’ fees. If use of any systems, article, apparatus, part, device, process or Deliverable is enjoined, Consultant shall, at its own expense and in the following order, subject to commercial practicality, either: 1) procure for Company the right to continue using said Services, systems, article or apparatus, part, device, process or Deliverable; 2) replace same with a non infringing equivalent; or 3) remove said systems, article or apparatus, part, device, process or Deliverable and refund the purchase price and the transportation and installation costs thereof.
(c) Insurance. During the Term, Consultant shall maintain minimum insurance coverage as follows, and shall furnish to Company a Certificate of Insurance from its insurance carrier(s) certifying that insurance coverage is in effect and will not be canceled or materially changed without Company’s written consent:
(1) Worker’s compensation and employee liability per statutory requirements;
(2) Comprehensive General Liability including contractual liability coverage with the following limits:
(a) Bodily Injury:
(1) Each Person: $3,000,000 USD
(2) Each Occurrence: $4,000,000 USD
(b) Property Damage:
(1) Each Accident: $3,000,000 USD
(2) Aggregate: $4,000,000 USD
Jon Golden Photography carries $2,000,000 USD insurance coverage
10. Relationship of the Parties; Assignment.
(a) Consultant is an independent contractor to Company. Consultant’s Personnel are neither employees of Company nor eligible for participation in any Company employee benefit programs. Performance of Services by Consultant and receipt of payments shall have no effect on any payments or benefits that any Consultant Personnel is now or may later become entitled to as a result of past employment by Company.
(b) Neither Consultant’s Personnel, Consultant nor its agents, subsidiaries, affiliates and employees are in any way the legal representatives or agents of Company, and neither shall have any right or authority to assume or create any obligation of any kind expressed or implied in the name of or on behalf of Company.
(c) This Agreement and any rights hereunder (except where expressly provided in a signed writing to the contrary) are non exclusive and non assignable. Any assignment by one party without the prior written consent of the other party shall be void; provided that Company may assign or transfer its rights and obligations under the Agreement to any affiliate of Company upon written notice to Consultant. Consultant shall notify Company in writing in advance of any proposed change in its ownership, control or management and shall not without the written consent of Company delegate the performance of its obligations under this Agreement to any firm or person (other than a principal, officer or regular employee of Consultant).
11. Controlling Laws.
(a) This Agreement shall be governed by all the applicable laws and regulations of the United States Government and its departments and agencies. Each party’s rights and obligations under or in connection with this Agreement shall be governed by such laws and regulations and by the laws of the State of New York, U.S.A. (excluding its conflict of laws rules). The parties exclude application of the United Nations Convention on Contracts for the International Sale of Goods.
(b) The parties shall attempt amicably to resolve any controversy, dispute or difference arising out of this Agreement, failing which either party may initiate litigation only in the United States District Court for the Southern District of New York or, if such court lacks subject matter jurisdiction, in the Supreme Court of the State of New York in and for New York County. The parties submit to personal jurisdiction in said courts and waive any defenses regarding venue or forum non conveniens.
(c) Consultant agrees to comply with the applicable provisions of any federal, state, provincial or local law or ordinance and all lawful agreements, rules and regulations issued thereunder.
(d) Consultant shall comply with any provisions, representations or agreements or contractual clauses required to be included or incorporated by reference or operation of law in the Agreement resulting from: (i) Equal Opportunity (Executive Order 11246 as amended by Executive Orders 113575 and 10286 and applicable regulations promulgated pursuant thereto); (ii) Employment of Veterans (Executive Order 11701 and applicable regulations promulgated pursuant thereto); (iii) Employment of the Handicapped (Executive Order 11758 as amended by Executive Order 11867 and applicable regulations promulgated pursuant thereto); (iv) Employment Discrimination Because of Age (Executive Order 11141 and applicable regulations promulgated pursuant thereto); and (v) Utilization of Disadvantaged and Business Enterprises (Executive Order 11625, Public Law 95 507 and applicable regulations promulgated pursuant thereto).
(e) Consultant warrants and certifies that no forced, indentured, under minimum age or prison labor will be used in providing the Services or Deliverables under this Agreement. If any such labor is determined to have been used, Company shall have the right to immediately terminate the Agreement without further compensation.
(f) Consultant represents that any Deliverables were or will be produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended, including Section 12 (a) thereof.
(g) Consultant certifies that with respect to agreements which exceed $10,000 USD it is in compliance with the requirements for nonsegregated facilities set forth in 41 C.F.R. Chapter 60 1.8.
(h) Consultant and Consultant's Personnel agree to comply fully with the import and export control laws and regulations of the United States Government. No information, technical data, software or Services will be exported or re exported except as permitted by U.S. law and regulation and with Company’s written approval.
(i) Consultant shall comply with all laws dealing with improper or illegal payments, gifts and gratuities, and Consultant agrees not to pay, promise to pay or authorize the payment of any money or anything of value, directly or indirectly, to any person for the purpose of illegally or improperly inducing a decision or obtaining or retaining business in connection with this Agreement.
12. Conflict of Interest; Company Policies.
(a) Consultant represents and warrants that: (1) it has no conflict of interest which would prevent Consultant from acting in the best interests of Company and that such a situation will not exist during the Term; (2) it has not entered into any contract or agreement, or executed any document whatsoever, that will in any manner prevent it from: (a) giving Company the exclusive benefit of services under this Agreement; (b) disclosing and assigning ideas, inventions, computer software, trade secrets and other Intellectual Property as provided in Section 5 of this Agreement; or (c) performing any other provision of this Agreement; (3) it will not enter into any contract or agreement, or execute any document, which will create a conflict of interest or which will prevent it from freely performing any provision of this Agreement; and (4) it will not knowingly incorporate confidential information of any person or entity not a party to this Agreement into any Services or Deliverables furnished to Company without prior written notice to Company.
(b) Consultant and each of Consultant’s Personnel: (1) acknowledges receipt of Guidelines – Third Party Consultants (the “Guidelines”), attached hereto as Schedule G, as well as Power Systems Integrity Guide for Suppliers, Contractors and Consultants (the “Guide”), attached hereto as Schedule H, and covenants and agrees to full compliance with the Guidelines and the Guide in the performance of Services; and (2) agrees that they shall, upon reasonable notice, attend and participate in compliance briefings conducted by Company representatives; and
(c) Consultant and each of Consultant’s Personnel agree that they shall not communicate in any manner with: (1) any officer or employee of any Federal agency of the United States for or on behalf of Company with respect to any contract or federal procurement; or (2) any member of Congress or any employee of a member of Congress for or on behalf of Company with respect to any matter.
13. Expiration, Renewal, Termination, Suspension.
(a) Expiration. This Agreement shall automatically expire at the end of the Term unless specifically renewed prior thereto by mutual written consent by the parties.
(b) Termination by Mutual Agreement. This Agreement and any PO or SOW hereunder may be terminated before the Term by mutual written consent by the parties.
(c) Termination for Convenience. Company may terminate all or any part of this Agreement and any PO or SOW hereunder at any time by written notice to Consultant specifying the extent of termination and the effective date. Upon such termination (except due to Consultant's insolvency or default including failure to comply with this Agreement), Company and Consultant shall negotiate reasonable termination costs identified by Consultant within thirty (30) days of termination notice.
(d) Termination for Insolvency. If Consultant ceases to conduct its operations in the normal course of business, including any inability to meet its obligations as they mature, if any proceeding under the bankruptcy or insolvency laws is brought by or against Consultant, if a receiver is appointed or applied for, or if an assignment for the benefit of creditors is made by Consultant, Company may terminate all or any part of this Agreement without liability, except for deliveries previously made or for Deliverables covered by this Agreement then completed and later delivered in accordance with the terms of the Agreement.
(e) Termination for Default. Time is of the essence in this Agreement. Except for delay which is due to causes beyond the reasonable control and without the fault or negligence of Consultant and all of its suppliers, Company may, by written notice of default, terminate the whole or any part of this Agreement in any one of the following circumstances: (a) if Consultant fails to perform within the time specified herein or any written extension granted by Company; (b) if Consultant fails to make progress as to endanger performance of this Agreement; (c) Consultant breaches, violates or Company finds to be untrue, any of the certifications, representations and warranties concerning environment, health and safety as set forth in Section 8(c) of this Agreement; or (d) if Consultant fails to comply with any other terms and conditions of this Agreement. Such termination shall become effective if Consultant does not cure such failure within a period of ten (10) days or such longer period as Company may authorize in writing. Upon termination, Company may procure, upon such terms as it shall deem appropriate, supplies or services similar to those so terminated. Consultant shall continue performance of this Agreement to the extent not terminated and shall be liable to Company for any excess costs for such similar Services or Deliverables. As an alternate remedy and in lieu of termination for default, Company, at its sole discretion, may elect to extend the delivery schedule and/or waive other deficiencies in Consultant's performance, in which case an equitable reduction in the amount of payments to be made under the Agreement shall be negotiated. If Consultant for any reason anticipates difficulty complying with any required delivery dates hereunder, or in meeting any of the other requirements of this Agreement, Consultant shall promptly notify Company in writing. If Consultant does not comply with any schedule hereunder, Company may require delivery by the fastest means available and charges resulting from any such premium transportation must be fully pre paid and absorbed by Consultant. The rights and remedies of Company provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by contract, law or equity.
(f) Suspension. Company may at any time, by written notice to Consultant, suspend performance of work hereunder, specifying the date of suspension and the estimated duration. Upon receiving any such notice of suspension, Consultant shall promptly suspend performance of work hereunder to the extent specified, and during the period of such suspension, properly care for and protect all work in progress and materials, supplies and equipment related to the work. Upon Company’s request, Consultant shall promptly deliver copies of outstanding agreements and subcontracts for materials, equipment and services for the work and shall take such action relative to such agreements and subcontracts as directed by Company. Company may at any time withdraw the suspension by written notice to Consultant specifying the effective date and scope of withdrawal, and Consultant shall resume diligent performance of the work for which the suspension is withdrawn on the specified effective date of withdrawal.
(g) Obligations Upon Expiration or Termination. Neither Company nor Consultant shall be liable by reason of the termination, expiration or non renewal of this Agreement to the other for compensation, reimbursement or damages on account of the loss of prospective or anticipated revenues or on account of expenditures, investments, leases or commitments in connection with the business or good will of Company or Consultant or otherwise. However, this limitation is not intended to limit the liability of either party for defaults under Section 13(e). Upon expiration or after receipt of a notice of termination, Consultant shall immediately: (1) stop work as directed in the notice; (2) place no further subcontracts or Purchase Orders for materials, services or facilities hereunder, except as necessary to complete the continued portion of this Agreement; and (3) terminate all subcontracts to the extent they relate to work terminated. After termination, Consultant shall deliver to Company all completed work and work in process, including all designs, drawings, specifications and other documentation and material required or produced in connection with such work; submit a final termination settlement proposal in the form and in the manner prescribed by Company; and Company shall reimburse Consultant for the cost of all work performed under this Agreement before the date of receipt of the notice of termination, including a pro rata portion of Consultant's profit, less any costs Company incurred as a result of the termination, or due to Consultant’s breach of any of its representations, warranties or covenants in this Agreement. The following terms of this Agreement shall survive any such expiration or termination: Sections 5, 8 15, and 17.
14. Limitation of Liability. Neither party to this Agreement shall have liability to the other with respect to claims arising out of, in connection with or resulting from this Agreement, whether in contract, tort (including negligence of any degree) or otherwise except as provided under the terms of this Agreement.
15. Release of Claims. In consideration of the execution of this Agreement by Company, Consultant hereby releases Company from all claims, demands, contracts and liabilities, if any, as of the date of execution of this Agreement, except indebtedness, which may be owing upon a written contract signed by Company.
16. Waiver and Failure to Enforce. No claim or right arising out of a breach of this Agreement can be discharged in whole or in part by a waiver or renunciation unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. Company’s failure to enforce at any time or for any period of time any provision hereof shall not be construed to be a waiver of such provision or of the right to Company thereafter to enforce each and every such provision.
17. Covenants. If any goods or other materials sold or transferred to Company contain hazardous materials, Consultant shall provide all relevant information pursuant to the Occupational Safety and Health Act (OSHA), regulations 29 C.F.R. 1910.1200, including a completed Material Safety Data Sheet (OSHA Form 20) and mandated labeling information. Goods and other materials sold or transferred to Company shall not contain arsenic, asbestos, benzene, carbon tetrachloride, lead, cadmium or chemicals restricted under the Montreal Protocol unless Company expressly agrees in writing.
18. Certification Updates. From time to time, at Company's request, Consultant shall provide certificates relating to any applicable legal requirements or to update any portion of this Agreement, in each case in form and substance satisfactory to Company.
19. Notices. Notices and other communications between the parties shall be in English and shall be deemed to be validly given if transmitted in writing, by registered mail, overnight courier or personal delivery, in all cases signature required, to the other party at the address and to the contact set on the signature page of this Agreement. Either party may change its address by giving notice to the other party.
20. Acceptance of Terms and Conditions. The parties agree to be bound by and to comply with all the terms and conditions of this Agreement, including any supplements thereto and all specifications and other documents referred to in this Agreement. This Agreement does not constitute an acceptance by Company of any offer to sell, any quotation or any proposal. Reference in this Agreement to any such offer to sell, quotation or proposal shall in no way constitute a modification of any of the terms of this Agreement. The terms of this Agreement take precedence over any alternative terms and conditions in any other document connected with this transaction unless such alternative terms are expressly incorporated by reference on the face of this Agreement. ANY ATTEMPTED ACKNOWLEDGMENT OF THIS AGREEMENT CONTAINING TERMS AND CONDITIONS INCONSISTENT WITH OR IN ADDITION TO THE TERMS AND CONDITIONS OF THIS AGREEMENT IS NOT BINDING UPON COMPANY UNLESS SPECIFICALLY ACCEPTED BY COMPANY IN WRITING.
21. Execution and Modification.
(a) This Agreement and all documents incorporated herein by reference constitute the complete and final agreement concerning the subject matter hereof. Any representations, terms or conditions not incorporated herein shall not be binding upon either party. No course of prior dealings between parties, no course of performance and no usage of trade shall be relevant to determine the meaning of this Agreement even though the accepting or acquiescing party has knowledge of the performance and opportunity for objection. The invalidity, in whole or in part, of any of the foregoing sections of this Agreement shall not affect the remainder of such sections or any other section of this Agreement.
(b) This Agreement wholly cancels, terminates and supersedes all previous negotiations, commitments and writings between the parties in connection therewith. This Agreement shall not become effective or binding upon Company until signed by an authorized representative of the General Electric Company at which time it will be deemed retroactively effective upon the Effective Date.
(c) No change, modification, extension, renewal, ratification, rescission, termination, notice of termination, discharge, abandonment or waiver of this Agreement or any of the provisions hereof; nor any representation, promise or condition relating to this Agreement shall be binding upon Company unless made in writing and signed by an authorized representative of Company.
(d) The parties agree that they will contract in the English language and that there shall be no requirement to translate this Agreement or any of the documents incorporated herein into any other language.
IN WITNESS WHEREOF, this Agreement has been executed by both parties.
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SCHEDULE 'B' - Secrecy and Inventions Agreement
In consideration of Company (“Company”) approval of my furnishing of services under the Master Services Agreement (“Agreement”) between Company and Consultant, I agree to be personally bound by the following terms for Company’s benefit:
1. Law and Conflict of Interest
I warrant that my work with Company will not violate any law or conflict with any continuing interests or obligations I may have with my current or prior employers. During performance under the Agreement I will avoid any other activities that would present a conflict of interest regarding such performance.
I will hold in confidence all Proprietary Information I obtain from or develop for Company. I agree not to use Proprietary Information on my own behalf or on behalf of others, or disclose to others, at any time during or after termination of this Agreement, such information without Company’s prior written consent. I also will not knowingly disclose to Company any information that is known to be secret, confidential, or proprietary to any other person or firm.
I agree that any inventions, suggestions, ideas, innovations or reports made or conceived by me as a result of services performed hereunder (“Inventions”) shall be promptly disclosed to, and shall be the sole property of, Company. I will cooperate with Company in obtaining patents on any such Inventions and shall execute any documents tendered by Company to convey or perfect ownership in such Inventions. I will assist Company, at its expense, in any manner Company deems necessary to obtain, maintain or sustain such patents. Should any such Inventions be the result of combined efforts with, or the invention of any person or persons other than myself, I will so inform Company at the time of submission thereof. My obligations hereunder shall survive termination of this Agreement.
All copyrightable material resulting from work performed during the term of the Agreement shall be deemed to be “works made for hire” under U.S. copyright law and shall belong exclusively to Company. If by operation of law any such copyrightable materials are not deemed works made for hire, I agree to and hereby assign to Company the ownership of such materials including all copyrights thereto. Company may obtain and hold in its own name copyrights, registrations and other protection that may be available therein and I will provide Company any assistance required to perfect such protection. I expressly waive any “artist’s rights” or “moral rights” I might otherwise have in the materials developed under this Agreement. To the extent I cannot effectively waive such rights, I agree that I will not seek to enforce such rights against Company or any licensee or purchaser of such materials from Company.
5. Employer-Employee Relationship
In furnishing services under this Agreement, I will at all times be acting as an employee of Consultant. I will not be a Company employee and will not through this Agreement or my services be entitled to participate in or receive any benefit or right under any Company employee benefit or welfare plans, including without limitation, employee insurance, pension, savings and stock bonus or savings and security plans.
6. IM Security Guidelines
I shall be bound by any additional password or security documents, NT guidelines, UNIX guidelines, software licenses and IM security guidelines provided by Company.
My signature below indicates my agreement to be personally bound to all terms in this document.
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Consultant’s Reserved Intellectual Property
Approved by: COMPANY
(Print or Type Date)
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