For the Supply of Good and Services
Terms and Conditions
This Agreement (the “Agreement”), between Layer 9, with its registered office at St. John’s Innovation Centre, Cowley Road, Cambridge, CB4 0WS (“Layer 9”, “the sup-plier”) and the recipient of the quotation (“THE COMPANY”, “the purchaser”), is effective as of the quotation acceptance day, (the “Effective Date”). Layer 9 provides computer software and development service. THE COMPANY has requested the sup-plier a quotation for products or services. Layer 9 will deliver activities described in the QUOTATION. The parties agree as follows:
1. Computer Software and Development Activities. Layer 9 will perform the activities set forth in the QUOTATION attached to this Agreement.
2. Fees are as set forth in the QUOTATION unless otherwise agreed by the parties, each party is responsible for the personnel, travel and other out-of-pocket expenses associated with their respective activities.
3. Exclusivity. Unless otherwise set forth on the QUOTATION, this Agreement is nonexclusive and either party may work with any third parties that provide similar products or services.
4. Proprietary Rights. Each party acknowledges and agrees that it does not have any claim, right; title or interest in or to the other party’s intellectual property and nothing contained in this Agreement will give either party any right, title or interest in or to any intellectual property of the other party.
5. Trademarks. All use of a party’s trademarks by the other party must be approved prior to use and must comply with any trademark guidelines provided by the trademark owner. Use of a party’s trademarks is limited to the purposes set forth in this Agreement. Nothing in this Agreement gives either party any right, title or interest in the marks of the other party. Both parties agree to not adopt, use or register any words, phrases or symbols that are identical, or confusingly similar, to any of the marks of the other party.
6. Term. The original term of this Agreement shall be for a period agreed in the QUOTATION from the Effective Date (the “Initial Term”).
7. Termination. Aside from any clause in ‘6. Term’, either party may terminate this Agreement at any time upon 30 days prior written notice. Upon termination or expiration of this Agreement, in addition to the parties’ other rights and remedies available at law or equity, each party will return to the other party all of the other party’s other Confidential Information in the receiving party’s possession or control. Sections 4, 8, 9, 12 and 13 shall survive termination or expiration of this Agreement.
8.1 Definition. Any proprietary information or materials in any form provided by one party to the other party pursuant to this Agreement shall be considered confidential and proprietary information, including, without limitation, business or technical information, databases, object code, source code and associated documentation (“Confidential Information”).
8.2 Use and Non-Disclosure. Each party will: (a) only use the other party’s Confidential Information as expressly permitted in this Agreement; (b) protect the other’s Confidential Information from unauthorized use or disclosure using at least reasonable care; and (c) not disclose to any third party the other party’s Confidential Information except to those employees (and in Layer 9’s case, subcontractors and agents) who have a need to know in connection with performing Services and who are subject to obligations of confidentiality similar to this Section 8. This Agreement will not prevent either party from disclosing the other party’s Confidential Information to the extent required by a judicial order or other legal obligation, provided that the receiving party shall promptly notify the other party in writing and in advance of such disclosure to provide the other party the opportunity to contest or minimize the scope of disclosure.
8.3 Exceptions. The obligations and restrictions contained in this Section shall not apply to information: (a) which is now or subsequently becomes publicly available other than by breach of this Agreement; (b) which was already in the recipient’s possession and at its free disposal at the time of disclosure and was not obtained directly or indirectly from discloser; or (c) which is independently developed by the recipient without use of the other party’s Confidential Information.
9. Limitations of Liability. EXCEPT FOR BREACH OF SECTION 8, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, TREBLE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST OR CORRUPTED DATA, LOST PROFITS, LOST SAVINGS, LOST REBATES, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES, UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY THEREOF.
10. Conduct of Parties. Each party will conduct its operations in strict compliance with all applicable laws, ordinances and regulations, to obtain all necessary permits and licenses, to pay all taxes, debts and other liabilities when due and in all respects to operate in a fair, ethical and lawful manner, and not to engage in any business practices which may reflect adversely upon the public image of the other party, its products or services, or its trademarks and the goodwill related thereto.
11. Independent Contractor. Neither Layer 9 nor THE COMPANY is or shall be construed to be an agent, joint venture or employee of the other. Neither party shall have any authority to bind or otherwise obligate the other party in any manner and neither party shall represent to anyone that it has a right to do so.
12. Non-Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, neither Layer 9 nor THE COMPANY shall directly or indirectly employ or solicit employment of any employee, worker independent contractor or agent of the other who is directly involved in the performance of this Agreement or otherwise. If either Layer 9 or THE COMPANY commits any breach of the foregoing obligation, the offending party shall, without prejudice to any other rights or remedies, on demand, pay to the affected party a sum equal to one year’s salary or the annual fees that were payable to that employee, agent, worker or independent contractor plus the recruitment costs incurred by the affected party in replacing such person(s).
13. Dispute Resolution. Any claim or controversy arising out of or relating to the performance of this Agreement which the parties are unable to resolve between themselves shall be settled by arbitration, before a single arbitrator situated in London. The arbitration shall be conducted by an arbitrator under the Rules of the International Centre for Dispute Resolution.
14. Amendments; Waiver; Severability. This Agreement may only be amended or modified in a writing duly executed by authorized representatives of both parties. Any waiver of any breach of any term or any condition of this Agreement shall not be construed as a waiver of any subsequent breach of any term or condition of this Agreement. If any part, term or provision of this Agreement shall be held to be illegal or unenforceable it shall not affect the validity or enforceability of the remainder of this Agreement.
15. Entire Agreement. This Agreement and any Schedules constitute the entire and exclusive statement of the mutual agreement and understandings of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement. The parties have executed this Agreement as of the Effective Date.