THIS MASTER SERVICES AGREEMENT, effective as of the invoice date (the "Agreement"), is made between the customer ("Customer") and the InfoQuest entity identified on Customer's invoice ("InfoQuest"). "Customer" shall include Customer's corporate parent, subsidiaries and affiliates that are majority owned by Customer, or its parent, or are under voting control of such entities and/or related companies approved by InfoQuest to receive Services under this Agreement (collectively, "Affiliates") who purchase Services hereunder and "InfoQuest" shall include any affiliate of InfoQuest with whom an order is placed. InfoQuest and Customer agree to the following terms and conditions:
1. SERVICES
This Agreement shall apply each time Customer engages InfoQuest to provide services. All services provided will be described in one or more of the following: (1) "Service Descriptions" detailed in the services agreements available at www.infoquest.com or Customer's separate signed service contract with InfoQuest; (2) any mutually agreed "Statement of work" ("SOW"); OR (3) "Technical Specification Form" as applicable (collectively, the "Services"). In the event of a conflict between the terms of this Agreement and a Service Description, SOW, or Technical Specification Form, the terms of these documents will be followed according to the following order of preference: (1) the SOW or Technical Specification Form, (2) the Agreement; and (3) Service Descriptions. "Services" does not include third party branded services ("Third Party Services") that may be purchased from a third party by Customer or sold by InfoQuest as a distributor or sales agent.
2. TERMS
2.1 Requests for Service; Quotes and Orders. All orders for Services must specify InfoQuest's quotation (if any), and reference the Service(s) requested and invoice address. Customer may place orders in writing, by telephone or by facsimile transmission. Telephone orders must be confirmed in writing or by facsimile. All orders are subject to acceptance by InfoQuest. If Customer orders on-line, InfoQuest may issue to Customer user names and passwords (the "Purchase Codes"). By accepting and using the Purchase Codes, Customer acknowledges the validity of an electronic order, which shall be deemed to be a writing for all purposes hereunder, and agrees to be responsible for full payment of any Services ordered using Customer’s Purchase Codes. Customer is responsible for keeping the Purchase Codes confidential and controlling their use.
2.2 Purchases by Affiliates. Unless otherwise agreed in writing, any Affiliate who submits an order to InfoQuest shall have thereby agreed to abide by the terms of this Agreement. InfoQuest, in its sole discretion, may discontinue selling Services to any Affiliate or may require additional payment and/or credit conditions for such Affiliate.
2.3 Affiliate Guaranty. Subject to the terms regarding “Purchases by Affiliates” above, in consideration of InfoQuest's agreement to extend credit to Customer’s Affiliates at the same or similar level as the credit extended to Customer, Customer hereby unconditionally guarantees complete and timely payment of any and all amounts due to InfoQuest from any Affiliate.
2.4 Prices. The prices charged for Services purchased under this Agreement will be InfoQuest’s then current charges for such services in each InfoQuest region or as quoted by InfoQuest. If the Services are being performed on a time and materials basis, any estimates provided by InfoQuest are for planning purposes only. Any required deposits are non-refundable.
2.5 Additional Fees; Taxes. Prices are exclusive of all country, provincial, state and local sales, use, value added, excise, privilege, franchise and similar taxes. Taxes imposed on InfoQuest (other than taxes related to InfoQuest’s income) in connection with the Services purchased under this Agreement will be paid by Customer and will appear as separate items on InfoQuest's invoices.
2.6 Invoicing and Payment. Customer’s payment terms will be net thirty (30) days from the date of invoice, subject to continuing credit approval by InfoQuest. Customer will pay InfoQuest in US dollars. Additional charges may apply if Customer requests services that are performed outside contracted hours or are beyond the normal coverage for the particular service. For invoices not paid within thirty (30) days of the invoice date, InfoQuest reserves the right to charge Customer a late penalty charge of one and a half percent (1.5%) per month applied against undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. In addition, InfoQuest may, without waiving any other rights or remedies to which it may be entitled, decide not to accept additional orders from Customer and/or seek collection of all amounts due, including reasonable legal fees and costs of collection.
2.7 Term. This Agreement will begin on the effective date stated above and will continue until terminated in accordance with its terms. Each Service Description, SOW or Technical Specification Form, as applicable, will continue for the term stated therein, unless otherwise terminated pursuant to this Agreement.
2.8 Termination. Either party may terminate this Agreement by providing at least thirty (30) days prior written notice to the other. Termination of the Agreement will not terminate any outstanding Service Description, SOWs, or Technical Specification Forms and the terms of this Agreement will survive such termination to the extent that such terms are incorporated into any outstanding Service Description, SOWs, or Technical Specification Forms. Either party may terminate an individual Service Description, SOW or Technical Specification Form if the other party commits a material breach of such an agreement and the breach is not cured within thirty (30) days of receipt of written notice from the injured party. Termination of one or more Service Description, SOW, or Technical Specification Form, will not terminate this Agreement. Upon termination, all rights and obligations of the parties under this Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations and any obligations that expressly or by implication are intended to survive termination.
3. THIRD PARTY PRODUCTS, THIRD PARTY SERVICES, SOFTWARE INSTALLATION
"Third Party Products" means any hardware or software, other than parts that are InfoQuest branded. Third Party Products and/or Third Party Services may be provided by Customer or procured for Customer by InfoQuest, as described by the applicable Service. In the event the Third Party Products procured by InfoQuest are not used for the Services within a reasonable time following purchase of the parts by InfoQuest, the Third Party Products will be shipped and invoiced to Customer and Customer will pay for these parts within thirty (30) days after the date of invoice. InfoQuest is not responsible for the specifications of Third Party Products selected by Customer, including revisions or engineering changes. Some manufacturers’ warranties or service contract terms and conditions may become void if InfoQuest or anyone else, other than the manufacturer or its authorized representative, works on the hardware or software. INFOQUEST DOES NOT TAKE RESPONSIBILITY FOR THIRD PARTY WARRANTIES OR FOR ANY EFFECT THAT THE INFOQUEST SERVICES MAY HAVE ON THOSE WARRANTIES. Except as agreed to in writing between Customer and InfoQuest, Third Party Services shall be exclusively subject to terms and conditions between the third party and Customer. For software provided by Customer, Customer authorizes InfoQuest (or otherwise obtains the rights for InfoQuest) to copy, install and modify, if necessary (and as required by the Technical Specification Form), all software to be used in the Services or to be recorded in electronic media for subsequent re-installation of backup. Customer warrants to InfoQuest that it has obtained any licenses, consents, regulatory certifications or approvals required to give InfoQuest and its subcontractors or employees the right or license to access, copy, distribute, use and/or modify (including creating derivative works) or install any Third Party Products to be used in the Services, without infringing the ownership or license rights (including patent and copyright) of the providers or owners of such products.
4. PROPRIETARY RIGHTS
4.1. Deliverables. InfoQuest will retain exclusive ownership in all Deliverables created by InfoQuest hereunder and will own all intellectual property rights, title and interest in any ideas, concepts, know how, documentation or techniques developed by InfoQuest under this Agreement. Subject to payment in full for the applicable Services, InfoQuest grants Customer a perpetual, non-exclusive, non-transferable, royalty-free right to use the Deliverables solely in the country(ies) in which Customer does business and solely for Customer’s internal use. “Deliverables” means the tangible and intangible materials, including reports, studies, base cases, drawings, findings, software, manuals, procedures and recommendations that are prepared uniquely and exclusively for use by Customer by InfoQuest or its subcontractors in the course of performing the Services and that are specifically identified in a signed Statement of Work as Deliverables.
4.2. Tools & Software. InfoQuest will retain all intellectual property rights with respect to the tools and/or software that InfoQuest uses to deliver the Services. Any use by Customer, including the execution, reproduction, modification, distribution, transmission, republication, display, transfer or performance, except as specifically permitted by InfoQuest during the term of Services and for the delivery of Services, is strictly prohibited. Additionally, Customer use of software, online services, or software-enabled services in connection with the Services is pursuant to the terms of the InfoQuest Acceptable Use Policy, which is available for review at www.infoquest.com/policy/acceptableuse.
5. EXPORT; REGULATORY REQUIREMENTS
5.1 Export. Customer acknowledges that the Services sold under this Agreement, which may include technology and software, are subject to the customs and export control laws and regulations of the United States (“U.S.”) and may also be subject to the customs and export laws and regulations of the country in which the Services are rendered and/or received. Customer agrees to abide by those laws and regulations. Customer further represents that any software provided by Customer and used as part of the Services contains no encryption or, to the extent that it contains encryption, such software is approved for export without a license. If Customer cannot make the preceding representation, Customer agrees to provide InfoQuest with all of the information needed for InfoQuest to obtain export licenses from the United States government and to provide InfoQuest with such additional assistance as may be necessary to obtain such licenses. Notwithstanding the foregoing, Customer is solely responsible for obtaining any specific licenses relating to the export of software if a license is needed. InfoQuest may also require export certifications from Customer for Customer provided software. InfoQuest’s acceptance of any order for Services is contingent upon the issuance of any applicable export license required by the United States Government; InfoQuest is not liable for delays or failure to deliver Services or a product resulting from Customer’s failure to obtain such license or to provide such certification.
5.2 Regulatory Requirements. InfoQuest is not responsible for determining if Third Party Products to be used in performance of the Services satisfy the local regulatory requirements of the country to which the products are to be shipped, nor shall InfoQuest be obligated to perform any Services where the resulting products or software do not satisfy the local regulatory requirements.
6. CUSTOMER RESPONSIBILITIES.
It is the Customer’s responsibility to backup data on Customer’s system. INFOQUEST IS NOT RESPONSIBLE FOR LOSS OF OR RECOVERY OF DATA, PROGRAMS, OR LOSS OF USE OF SYSTEM(S) OR NETWORK arising out of the Services or support or any act or omission, including negligence, by InfoQuest or a third-party service provider. Customer acknowledges that InfoQuest’s performance and delivery of the Services are contingent upon: (i) Customer providing safe and hazard-free access to its personnel, facilities, equipment, hardware, software, network and information and (ii) Customer’s timely decision-making, notification of relevant issues or information and granting of approvals and/or permission. Customer will promptly obtain and provide to InfoQuest any required licenses, approvals or consents necessary for InfoQuest’s performance of the Services. Information disclosed by Customer pursuant to a separate Nondisclosure Agreement (“NDA”) signed by both parties will be protected under the terms of the NDA. Customer acknowledges that any information or data disclosed or sent to InfoQuest that is not protected under a separate NDA is not confidential or proprietary to Customer.
7. LIMITATION OF SERVICES
Except as stated below, when Services consist of repair of InfoQuest-branded systems, such Services shall be those repair services that are necessary because of any existing defect or a defect occurs in materials or workmanship in the system or in any system component covered by this Agreement. Preventive maintenance is not included. Repairs necessitated by software problems, or as a result of alteration, adjustment, or repair by anyone other than InfoQuest (or its representatives) are not included. Unless otherwise provided in the SOW, Services do not include repair of any system or system component which has been damaged as a result of: (i) accident, misuse, or abuse of the system or component (such as, but not limited to, use of incorrect line voltages, use of incorrect fuses, use of incompatible devices or accessories, improper or insufficient ventilation, or failure to follow operating instructions) by anyone other than InfoQuest (or its representatives), (ii) an act of God such as, but not limited to, lightning, flooding, tornado, earthquakes, and hurricanes, or (iii) the moving of the system from one geographic location to another or from one entity to another.
8. LIMITED WARRANTY & LIMITATION OF LIABILITY
8.1 Limited Warranty. INFOQUEST WARRANTS THAT SERVICES WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER. EXCEPT AS EXPRESSLY STATED IN THE PRECEDING SENTENCE, INFOQUEST MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY RELATING TO THIRD PARTY PRODUCTS OR THIRD PARTY SERVICES; ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING SERVICES; ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR THE RESULTS OF ANY RECOMMENDATION INFOQUEST MAY MAKE; AND, ANY IMPLIED WARRANTIES CONCERNING THE PERFORMANCE, MERCHANTABILITY, SUITABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OF ANY OF THE DELIVERABLES OR OF ANY SYSTEM THAT MAY RESULT FROM THE IMPLEMENTATION OF ANY RECOMMENDATION INFOQUEST MAY PROVIDE.
8.2 Limitation of Liability. NEITHER CUSTOMER, INFOQUEST NOR INFOQUEST’S SUBCONTRACTORS WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES PROVIDED BY INFOQUEST EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. INFOQUEST SHALL NOT HAVE LIABILITY FOR (I) LOSS OF INCOME, PROFIT, OR SAVINGS, WHETHER DIRECT OR INDIRECT, (II) LOST OR CORRUPTED DATA OR SOFTWARE, OR (III) PRODUCTS NOT BEING AVAILABLE FOR USE. EXCEPT FOR CLAIMS THAT THE SERVICES (EXCLUDING THIRD PARTY PRODUCTS) CAUSED BODILY INJURY (INCLUDING DEATH) DUE TO INFOQUEST’S NEGLIGENCE OR WILLFUL MISCONDUCT, INFOQUEST’S TOTAL LIABILITY ARISING OUT OF, OR IN CONNECTION WITH, ANY SERVICES PURCHASED PURSUANT TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE SPECIFIC SERVICE(S) GIVING RISE TO SUCH CLAIM DURING THE PRIOR TWELVE MONTH PERIOD.
8.3 High Risk Application Disclaimer. InfoQuest has not tested or certified its products, Services or deliverables for use in high risk applications including medical life support, medical device, direct physical patient contact, water treatment, nuclear facilities, weapon systems, mass and air transportation control, flammable environments, or any other potentially life critical uses. Customer understands and agrees that InfoQuest makes no assurances that the products, Services or deliverables are suitable for any high-risk uses.
9. INDEMNIFICATION
Customer accepts responsibility for, and agrees to indemnify and hold InfoQuest harmless from, any and all liability, damages, claims or proceedings arising out of (i) the failure of Customer to obtain the appropriate license, intellectual property rights, or any other permissions, regulatory certifications or approvals required to support any Service Description, SOW, or Technical Specification Form or InfoQuest's performance of the Services, or (ii) any inaccurate representations regarding the existence of an export license.
10. MISCELLANEOUS ITEMS
10.1 Assignment; Subcontracting. Unless otherwise provided in the Service Description, SOW or Technical Specification Form, Customer may not assign this Agreement without the prior written consent of InfoQuest. InfoQuest has the right to hire subcontractors to perform the Services provided that InfoQuest shall remain responsible for the performance of Services under this Agreement, or to assign Services to its affiliates.
10.2 Entire Agreement; Severability. This Agreement (with attachments) is the entire agreement between InfoQuest and Customer with respect to its subject matter and supersedes all prior oral and written understandings, communications or agreements between InfoQuest and Customer. No amendment to or modification of this Agreement, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement is void or unenforceable, the remainder of this Agreement will remain in full force and will not be terminated.
10.3 Independent Contractor. The parties are independent contractors. Neither party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this Agreement..
10.4 Force Majeure. Neither party shall be liable to the other party for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control including, but not limited to, fire, flood, war, embargo, strike, riot or the intervention of any governmental authority (a “Force Majeure”). In such event, however, the delayed party must promptly provide the other party with written notice of the Force Majeure. The delayed party’s time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure events lasts longer than thirty (30) days, the other party may immediately terminate the applicable Service Description, SOW or Technical Specification Form by giving written notice to the delayed party.
10.5 Notices. To give notice under this Agreement, the notice must be in writing and sent by postage prepaid first-class mail, receipted courier service, facsimile telecommunication or electronic mail to the address which appears below each party's signature below or to such other address as any party shall specify by notice in writing to the other party and will be effective upon receipt.
10.6 Section Headings. The section headings contained in this Agreement are inserted for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
10.7 Governing Law; Venue; Waiver of Trial by Jury. This agreement shall be deemed entered into in the State of Pennsylvania. Except for disputes concerning the user of a domain name registered with InfoQuest, You agree that the laws and judicial decisions of Dauphin County, Pennsylvania, shall be used to determine the validity, construction, interpretation and legal effect of this Agreement. You agree that any action relating to or arising out of this Agreement shall be brought in the courts of Dauphin County, Pennsylvania. For the adjudication of disputes concerning the use of any domain name registered with InfoQuest, You agree to submit to jurisdiction and venue in the U.S. District Court for the Middle District of Pennsylvania Harrisburg Division located in Harrisburg, Pennsylvania. You agree to waive the right to trial by jury in any proceeding that takes place relating to or arising out of this Agreement. This Agreement will be interpreted and construed in accordance with the English language.
10.8 Dispute Resolution. The parties will attempt to resolve any claim, or dispute or controversy (whether in contract, tort or otherwise) against InfoQuest, its agents, employees, successors, assigns, or affiliates (collectively for purposes of this paragraph, “InfoQuest”) arising out of or relating to this Agreement, InfoQuest's advertising, or any related purchase (a “Dispute”) through face to face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential. Notwithstanding the foregoing, either party will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. In the event the parties are unable to resolve the Dispute within thirty (30) days of notice of the Dispute to the other party, the parties shall be free to pursue all remedies available at law or equity.
10.9 Limitation Period. Neither party may institute any action in any form arising out of this Agreement more than two (2) years after the cause of action has arisen, or in the case of nonpayment, more than two (2) years from the date of last payment.
10.10 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.
Revised: 07/28/2008
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