Revised April 4, 2013
Essintial Enterprise Solutions℠, LLC, is ordering goods or services from Supplier by a Purchase Order (PO) or Subcontract issued to Supplier that incorporates these Terms and Conditions by reference. The term Agreement shall be used herein to refer to the PO or Subcontract issued to Supplier, plus the terms and conditions in this document. All work shall be performed and products delivered in accordance with the Agreement. Supplier shall only be entitled to compensation that is expressly set forth in the Agreement or amendments thereto. Supplier shall maintain accurate records of Supplier’s time, services, performance and expenses under the Agreement, and shall provide such records to Essintial℠ upon request. Supplier shall keep these records for a minimum of seven (7) years following completion of work performed under the Agreement. Essintial℠ and its Customer shall have the right to audit these records during normal business hours. If significant errors are found, Supplier shall pay the cost of the audit.
Customer Flow-Down Provisions
Supplier shall comply with the Additional Provisions, if any, identified in Exhibit 1.
Supplier shall provide all deliverables in accordance with the Agreement and the requirements as identified on the PO that may be issued to Supplier from time to time by Essintial℠.
Supplier and Essintial℠ are independent contractors. Neither Party is an employee, agent or representative of the other Party. Neither Party shall have any right, power, or authority to enter into any agreement for or on behalf of the other Party, or to incur any obligation or liability or otherwise bind the other Party. The Agreement does not create an association, joint venture, or partnership between the parties nor impose any partnership liability upon either Party. Supplier shall be solely responsible for compensating any person providing services on Supplier’s behalf and for ensuring that any taxes or other payments due are paid. Supplier is solely responsible for complying with all the rules and regulations relating to Worker’s Compensation, safety, health and other employment related matters and shall be responsible for its own acts and those of its employees and/or vendors during the term of this Agreement. Supplier, its employees and/or vendors are not entitled to any Essintial℠ benefits, including but not limited to, insurance, retirement, and vacation benefits.
Supplier warrants that all Goods or Services provided under the Agreement will be provided in accordance with the standards of care and diligence normally exercised by persons providing such Goods or Services in the industry, be free from defects in workmanship, and conform to the requirement of the Agreement. If Essintial℠ determines that Supplier has failed to comply with the warranties set forth herein, Supplier shall correct any such failures without additional cost to Essintial℠.
All materials developed for, in development for, or provided to Essintial℠ by Supplier, and paid for under the Agreement (the “Deliverables”) shall be deemed to be works made for hire and owned exclusively by Essintial℠. Such Deliverables shall include, but are not limited to, reports, data, notes, plans, documentation, specifications, files, revisions, or modifications. In the event such Deliverables may not, by operation of law, be works made for hire, Supplier hereby assigns to Essintial℠ all rights in such Deliverables and all copyrights and patents rights therein. Supplier shall execute any document and provide reasonable assistance to Essintial℠ as Essintial℠ may reasonably request to give full effect to Essintial’s ownership rights hereunder.
The provisions of this Article do not apply to any other form of work products produced by Supplier or to any materials, methodologies, components or know-how previously belonging to Supplier in a manner independent of this Agreement that are used by Supplier in the course of work hereunder, nor to any modifications or enhancements thereto. The intellectual property rights in all such materials shall remain with Supplier, but Essintial℠ shall have the right to use such materials if part of a deliverable, to include a fully paid-up, perpetual, non-exclusive license to use any intellectual property that is part of the materials.
Nothing in this Agreement shall prevent Supplier from using any ideas, concepts, methods, theories or processes of general application (insofar as this does not involve the use of Deliverables in which the Intellectual Property Rights have been vested in Essintial℠) without obligation to account to Essintial℠.
- Supplier shall indemnify, defend and hold harmless Essintial℠, its parent, affiliates, subsidiaries, directors, officers, employees, and agents from and against all damages, losses, liabilities, fines, penalties, judgments, awards, costs and expenses (including reasonable attorneys’ fees) of any kind (collectively, “Damages”) arising out of any claim, action, suit or proceeding of any kind (each, a “Claim”) brought by a third party alleging or asserting that Supplier, or any of its officers, directors, employees, agents or Suppliers have caused, in whole or in part, any personal injury (including death) or damage to tangible or real property.
- Intellectual Property Indemnity. Supplier shall indemnify, defend and hold harmless Essintial℠ against any and all liability, suits, claims, losses, damages and judgments, and shall pay all costs (including reasonable attorney’s fees) and damages to the extent that such liability, costs or damages arise from a claim that any product or part thereof used by Essintial℠ and delivered by Supplier within the scope of this Agreement infringes any third party’s United States patent, copyright, trademark, or service mark. Should any product become, or in Supplier’s opinion be likely to become the subject of any claim of infringement, Supplier at its expense, (i) may procure for Essintial℠, the right to use the product or the affected part thereof, or (ii) to the extent such option is not available to Supplier, may replace the product or affected part with a modified or substituted product or part that does not violate any third party’s rights and that is qualitatively and functionally at least the equivalent of the affected product or part. If neither (i) nor (ii) is available to Supplier, and Supplier has so advised Essintial℠, Essintial℠ may surrender the product and receive a refund of the aggregate payments made by Essintial for such product. Supplier’s obligation shall not apply to any infringement arising from the use or sale of products in combination with items not delivered by Supplier if such infringement would not have occurred from the use or sale of such products solely for the purpose for which they were designed or sold to Essintial℠.
- Supplier’s obligations under this Article are conditioned upon its being given (i) prompt notice of each such claim received in writing by Essintial℠ and (ii) the right to control and direct the investigation, defense and settlement of each such claim. Essintial℠ may, at its own expense, participate in the defense of any such action. Supplier, at its option, may defend or settle any such action, or any part thereof; however, no settlement of a Claim that involves a remedy other than the payment of money by Supplier shall be entered into by Supplier without the prior written consent of Essintial℠. If Supplier fails to indemnify, defend and hold Essintial℠ harmless as provided in this Article, Essintial℠ shall have the right to defend the Claim in such manner as it may deem appropriate and Supplier shall pay for any damages, attorneys’ fees and any other fees, costs, or expenses incurred by Essintial℠ in the defense of such Claim and in the prosecution of any action to enforce the provisions of this Article.
In the course of providing services hereunder, a Party may have access to confidential and proprietary information and materials of the other Party (Confidential Information). Confidential Information includes, but is not limited to, information related to past, present or future research, development or business affairs, any proprietary products, materials or methodologies, or any other information which provides the Parties with a competitive advantage. Confidential Information shall be limited to information clearly identified in writing as confidential with an appropriate stamp, legend or other notation, and in the case of oral disclosure, it shall be identified as confidential at the time of disclosure and summarized in writing within (30) days of disclosure and marked in accordance with this paragraph. Confidential Information shall be used by the receiving Party only in conjunction with the provision of Goods or Services hereunder and shall not be disclosed to any third party. No rights or licenses under patents, trademarks or copyrights are granted or implied by any disclosure of Confidential Information. Upon the disclosing Party’s request or completion or termination of this Agreement, the receiving Party shall return all Confidential Information to the disclosing Party. This Article shall survive the expiration or termination of the Agreement.
Confidential Information shall not include information which: (a) is or becomes part of the public domain through no act or omission of the receiving party; (b) was in the receiving party’s possession prior to the disclosure and had not been obtained directly or indirectly from the disclosing party; (c) is lawfully disclosed to 3 the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party; or (e) is disclosed by operation of law, provided the disclosing party has reasonable notice and opportunity to object if time permits.
Essintial℠ may terminate this Agreement upon thirty (30) days prior written notice to Supplier if Supplier is in default of any provision of this Agreement and such default is not cured within the thirty (30) day period. Essintial℠ may terminate this Agreement by giving at least thirty (30) days prior written notice to Supplier upon:
- Supplier ceasing to carry on its business as agreed to in this Agreement.
- Supplier becoming insolvent.
- The appointment of a receiver or a similar officer for the Supplier or for a substantial part of the Supplier’s property.
- Supplier not meeting any requirement in Exhibit 1.
- Supplier not meeting, if necessary and/or appropriate, any regulation and/or requirement as related to this Agreement. Essintial℠ may terminate this Agreement without cause at any time with ten days (10) days prior written notice to Supplier and immediately if the customer of Essintial℠ terminates its project assignment or contract with Essintial℠. Upon termination of this Agreement, Supplier shall cease all work and shall promptly provide to Essintial℠, without additional cost to Essintial℠, all work and materials developed, or in development, for Essintial℠ under this Agreement. Supplier shall also return to Essintial℠ all materials and Confidential Information provided to Supplier in connection with this Agreement.
All disputes and claims relating to the Agreement, the rights and obligations of the Parties under the Agreement, and any claims or causes of action relating to the performance of either Party, shall first be referred for resolution to each respective Party’s upper management. If such persons cannot resolve such matter within thirty (30) calendar days of commencing negotiations, then the matter may be referred by either party to a court of competent jurisdiction in the Commonwealth of Pennsylvania or through any form of alternative dispute resolution as the Parties may agree.
The prevailing Party in any litigation related to the Agreement shall be entitled to recover reasonable attorneys’ fees and expenses of litigation from the other Party, including fees and expenses of any appeal.
Non-competition and Solicitation
The Supplier agrees that it will not actively participate in other team efforts that are competitive to this Agreement, nor shall Supplier compete independently for work covered by Essintial’s contract with its Customer that Supplier is supporting under and during the duration of this Agreement and for six (6) months thereafter. The term “active participation” as used herein, means the exchange of technical or cost data for the Customer Contract with competitors. This Agreement is not intended to preclude either Party from bidding or contracting independently from the other on any industry program that is not in conflict with the scope and terms of this Agreement. It is recognized that Essintial℠ may include other suppliers as part of the team at Essintial’s discretion.
Supplier shall at its cost and expense, procure and maintain insurance coverage in the minimum amounts listed below with insurance companies meeting A.M. Best rating of A or better. Supplier shall provide to Essintial℠ a Certificate of Insurance showing the following coverages prior to performance under the Agreement. Essintial℠ shall be named as an additional insured under Supplier’s CGL and Automobile insurance policies. The fulfillment of the insurance obligations shall not otherwise relieve Supplier of any liability assumed under the Agreement or in any way modify or limit the Supplier’s indemnity obligations.
|Employers Liability||$2,000,000 each accident, bodily injury by accident|
|$2,000,000 each employee, bodily injury by disease4|
|$2,000,000 policy limit, bodily injury by disease|
|Comprehensive General||$2,000,000 general aggregate|
|Liability (CGL)||$2,000,000 products/completed operations aggregate|
|$2,000,000 each occurrence limit|
|Automobile Liability||$2,000,000 combined single limit|
Limitation of Liability
In no event shall Essintial℠ or its employees, representatives or subsidiaries be liable for any consequential, indirect, punitive, incidental or special damages, whether foreseeable or unforeseeable, and whether or not Essintial℠, or anyone else has been advised of the possibility of such damages, whether based upon lost good will, lost profits, loss of use of money, loss of data or interruption in its use or availability, stoppage of work, impairment of assets or otherwise arising out of breach of any express implied warranty, breach of contract, negligence, misrepresentation, strict liability in tort or otherwise, and whether based on any term in any contract document, any transaction performed or undertaken under or in connection with any contract document or otherwise. Essintial’s liability to Supplier for damages is limited to the amount paid or payable to the Supplier hereunder.
Successors and Assigns
Neither Party may assign any rights hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Any attempt to assign any rights, duties or obligations without the other Party’s written consent will be void. Notwithstanding the above, either Party may assign this Agreement to a surviving entity in connection with any merger, acquisition or consolidation, or sale of substantially all of its assets.
Essintial℠ agrees to pay all taxes however designated (excluding taxes on Seller’s net income) based on amounts payable pursuant to this agreement. Essintial℠ shall pay or reimburse Supplier any sales tax or use tax assessed on the services provided to Essintial℠ under this Agreement.
Governing Law and Jurisdiction
This Agreement shall be interpreted, construed, and enforced in all respects in accordance with the laws of the Commonwealth of Pennsylvania. Pennsylvania law shall apply notwithstanding any otherwise applicable conflicts of laws principles. Exclusive jurisdiction for all claims, demands, and suits arising from this Agreement shall reside in the state or federal courts located within or having jurisdiction over the County of Cumberland, Pennsylvania. Supplier specifically waives any objection or defense to venue and jurisdiction.