TERMS AND CONDITIONS
The term “Work” means any materials,including,without limitation,any computer programs,whether in the source code or object code version,together with any algorithm,flowchart,schematic,diagram,specification,annotation or other documentation connected therewith,and/or any work of authorship,invention,innovation,idea,concept,design,process,analysis,technique or know-how,created or developed by PIF Technologies,either individually or jointly,in connection with the performance of Services pursuant to this Agreement.
The term “Other Intellectual Property” means any computer software code or programs,whether in source code or object code version,together with any algorithm,flowchart,schematic,diagram,specification,annotation or other documentation connected therewith,and/or any routines,libraries,tools,methodologies,work of authorship,invention,innovation,idea,concept,design,process,analysis,technique,or know-how,acquired or developed by PIF Technologies prior to or independently of its performance of Services pursuant to this Agreement.
The term “Deliverables” means the deliverables identified in Appendix I of the statement of work.
The entire right,title and interest in and to the Work and the Other Intellectual Property,including without limitation,all copyrights,patent rights,trade secrets and all other worldwide intellectual property rights therein,shall be and remain in PIF Technologies.
The Deliverables,and all Work and Other Intellectual Property incorporated therein,are licensed to Customer as part of the underlying PIF Technologies software,subject to the terms and conditions of the existing license between PIF Technologies and Customer covering such software.
THE DELIVERABLES ARE DELIVERED TO CUSTOMER ON AN “AS IS” BASIS WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. PIF Technologies HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES,EXPRESS OR IMPLIED,ORAL OR WRITTEN,IN FACT,ARISING BY OPERATION OF LAW OR OTHERWISE,EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT AND DESIGNATED AS REPRESENTATIONS OR WARRANTIES,INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
In no event shall PIF Technologies be liable for any indirect,special,incidental,consequential,or exemplary damages,including without limitation,damages for lost profits or revenues,loss of use of any software or hardware,loss of data,or interruption of business,whether claimed in contract,tort,or otherwise,and arising out of or in connection this Agreement,even if PIF Technologies is informed of the possibility of such loss or damage.The cumulative liability of PIF Technologies for all claims relating to or arising under this Agreement,whether in contract,tort,or otherwise,shall not exceed the total amount of all fees paid by Customer to PIF Technologies for services under this Agreement.
Customer acknowledges that the services to be performed under this Agreement require highly trained individuals and that PIF Technologies expends significant resources to properly train and educate such individuals. Customer will not solicit or offer employment to any PIF Technologies employee who performs services under this Agreement during the term of this Agreement and for a period of six months thereafter.Customer agrees to pay PIF Technologies the amount of $85,000.00 in the event that Customer either directly or indirectly hires any such individual during the term of this Agreement and or for a period of twelve months thereafter.Customer acknowledges that this amount represents fair and reasonable compensation to PIF Technologies for the loss of such individual.
Either party may terminate this Agreement upon thirty(30)days by written notice if the other party breaches this Agreement,unless the breaching party cures the breach within such thirty-day period. The foregoing notwithstanding,PIF Technologies may stop work and terminate this Agreement immediately upon written notice if Customer fails to make any payment when and as due to PIF Technologies.In addition,if PIF Technologies initiates the change order process pursuant to Appendix I in the statement of work,and the parties are unable to agree upon a mutually acceptable change order,then either party may terminate this Agreement by giving the other party written notice. The right to terminate this Agreement shall be in addition to any other rights the parties may have at law or in equity. Upon the termination of this Agreement for any reason whatsoever,Customer shall pay PIF Technologies for Services performed and reimbursable expenses incurred prior to the date of termination at the rates set forth in APPENDIX I of the statement of work.
Independent Contractor Relationship. PIF Technologies is an independent contractor and not an employee,agent,joint venture or partner of Customer.
Complete Agreement. This Agreement constitutes the entire agreement of the parties with respect to the matters covered herein. Except for the PIF Technologies software license that governs Customer’s use of any Code delivered to Customer hereunder or the PIF Technologies services agreement that governs Customer’s use of hosted services,if applicable,no other agreements,representations,warranties,proposals or other communications between the parties,oral or written,purportedly agreed to or represented by or on behalf of PIF Technologies by any of its employees or agents,or contained in any sales materials or brochures,shall be deemed to bind the parties with respect to the subject matter hereof. Customer acknowledges that it is entering into this Agreement solely on the basis of the representations contained herein.
Governing Law. This Agreement shall be governed and construed in all respects in accordance with the substantive laws of United States of America and the State of New Hampshire. Any action arising out of or relating to this Agreement will be venued in a state or federal court situated within the State of New Hampshire,and Customer hereby irrevocably submits itself to the personal jurisdiction of said courts for such purposes.
Waiver. The failure of PIF Technologies to act on Customer’s breach of this Agreement shall not be deemed a waiver of said breach or a waiver of future breaches,unless such waiver is in writing and signed by PIF Technologies.
Amendment. This Agreement may be modified only by a writing signed by the party against whom enforcement thereof is sought.
Authority. Each party warrants and represents that the individual who signs this document on behalf of that party has the requisite authority to legally bind that party,and in the case of Customer,has the authority to approve payment of forthcoming invoices for services performed by PIF Technologies pursuant to this Agreement.