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THESE TERMS AND CONDITIONS ARE INCORPORATED BY REFERENCE INTO THE PURCHASE ORDER OR STATEMENT OF WORK (“SOW”) REFERRING TO THESE TERMS AND CONDITIONS (COLLECTIVELY, THE “AGREEMENT”). THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN “VENDOR” (AS DEFINED IN THE APPLICABLE SOW) AND TENSION INTERNATIONAL, INC. (“TENSION”). THIS AGREEMENT REPRESENTS THE COMPLETE AGREEMENT BETWEEN VENDOR AND TENSION CONCERNING THE SERVICES AND DELIVERABLES AND SUPERSEDES ANY PRIOR OR CONCURRENT AGREEMENT, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES, WHETHER VERBAL OR WRITTEN, INCLUDING BUT NOT LIMITED TO ANY PURCHASE ORDER OR STATEMENT OF WORK (“SOW”), AGREEMENT OR OTHER DOCUMENT OR TERMS PROVIDED BY VENDOR (WHETHER BEFORE OR AFTER DELIVERY OR PERFORMANCE) UNDER WHICH THE SERVICES OR DELIVERABLES WERE OR ARE OBTAINED. IN THE EVENT OF A CONFLICT BETWEEN OR AMONG (a) THESE TERMS AND CONDITIONS, (b) ANY SOW REFERRING TO THESE TERMS AND CONDITIONS, AND/OR (c) ANY SOW, AGREEMENT OR OTHER DOCUMENT OR TERMS PROVIDED BY VENDOR (WHETHER BEFORE OR AFTER DELIVERY OR PERFORMANCE), THE ORDER OF PREVALENCE SHALL BE FIRST, THESE TERMS AND CONDITIONS, AND SECOND, ANY SOW SIGNED BY BOTH PARTIES; ANY SOW OR OTHER DOCUMENT OR TERMS PROVIDED BY VENDOR (WHETHER BEFORE OR AFTER DELIVERY OR PERFORMANCE) SHALL BE VOID AND OF NO EFFECT UNLESS TENSION HAS AGREED IN WRITING TO SUCH AGREEMENT OR OTHER DOCUMENT OR TERMS.
TENSION AND VENDOR MAY BE ALTERNATIVELY REFERRED TO IN THIS AGREEMENT AS PARTY, INDIVIDUALLY, AND PARTIES, COLLECTIVELY.
1. Term.
(a) Renewal. Unless earlier terminated, the term of this Agreement (the “Term”) shall automatically renew for an additional one-year term(s) unless either Party gives written notice to the other Party, at least ninety (90) days before the end of the then existing Term, of its desire that this Agreement expire and not renew, in which case this Agreement will expire at the end of such then existing Term.
(b) Termination. The expiration or earlier termination of this Agreement or any SOW shall not affect any obligations of either Party accruing thereunder before such termination. For clarity, this Section 1(b) and Sections 2, 3, 4, 6, 7, 9, 11, 12, 14 and 15 shall survive the expiration or earlier termination of this Agreement or any SOW. This Agreement shall survive after its expiration or earlier termination for any SOW then remaining in effect, and will survive after such expiration or earlier termination to the extent otherwise provided in this Agreement.
(c) Representatives and Agents. In connection with the activities contemplated by this Agreement:
(i) Vendor shall be solely responsible for the safety and supervision of its own employees, associates, representatives and contractors involved with the Services or any other activities contemplated by this Agreement.
(ii) Vendor shall, and shall require its representatives, contractors, associates, and employees to, comply with all applicable federal, state and local health and safety requirements, rules, regulations, laws and ordinances, including without limitation, the safety regulations adopted under the Occupational Safety and Health Act of 1970 (“OSHA”), as amended from time to time. Vendor shall be responsible for the negligent or intentional acts of its personnel, vendors, agents, invitees and third parties on Tension’s premises.
2. Service Fees; Payment for Services and Deliverables. Unless otherwise agreed upon in the applicable SOW, Vendor shall invoice Tension on a monthly basis, in arrears, for services and Deliverables provided in the month then ended, together with all pre-approved reimbursable expenses and applicable taxes, if any, and Tension shall pay all undisputed amounts reflected in each such invoice within thirty (30) days after receiving such invoice (or such different deadline set forth in the applicable SOW). Vendor’s invoice shall be accompanied by descriptive time sheets to the extent the Services are provided on a time and materials basis.
3. Independent Contractor Status. The relationship created under this Agreement is one of independent contractors, and that nothing contained in this Agreement is intended to be construed by the Parties or by any third person to create the relationship of partners, principal and agent, employer and employee, or any association other than contracting parties. Without limiting the generality of the foregoing:
(a) Neither Party shall have the power or authority to bind or obligate the other Party in any manner whatsoever except as expressly authorized by such other Party in writing in the specific case; and
(b) Subject to applicable law, Tension will not withhold any portion of Vendor’s compensation for federal or state income tax purposes and will not pay any taxes, whether based on the Federal Insurance Contributions Act (FICA) or the Federal Unemployment Tax Act (FUTA) or otherwise, with respect to amounts paid to Vendor. Vendor understands that Vendor shall not receive W-2 forms from Tension, but when required by applicable law Vendor will receive IRS Form 1099s reporting Vendor’s income from Tension.
4. Warranty.
(a) Services. Vendor warrants to Tension that Vendor’s performance of the Services will be completed in a workmanlike manner and when performed, the Services shall conform to the Services specifications and service level metrics set forth in the applicable SOW (the “Services Warranty”).
(b) Deliverables.
(i) Vendor warrants to Tension that the Deliverables as manufactured, delivered and/or installed by Vendor (A) will be free from defects in material and/or workmanship, and (B) will perform in conformance with the specifications therefor contained in the applicable SOW (the “Deliverables Warranty” and together with the Services Warranty, the “Warranty”) for a period of two (2) years from the date of acceptance of the Deliverables in accordance with the acceptance criteria in the applicable SOW (such period being the “Warranty Period”).
(ii) Third party components that are integrated as part of the Deliverables carry either the foregoing warranty or the manufacturers’ warranty, whichever is longer.
(iii) Vendor shall promptly, at its own expense and option, either repair or replace any nonconforming or defective non-wear Deliverables provided by Vendor under the applicable SOW for which Tension submits a detailed claim in writing to Vendor within the Warranty Period.
(iv) Upon expiration of the Warranty Period, Vendor assigns to Tension (without further action or documentation) all remaining rights and benefits, if any, then held by Vendor under warranties made or furnished by the manufacturers, suppliers or vendors of items supplied by any of such parties for use in the Deliverables.
5. Insurance. During the term of this Agreement, Vendor shall carry, from an authorized insurance company: (i) Worker’s Compensation insurance as required by the laws of the country and state in which work is being performed; and (ii) comprehensive general liability insurance with limits for bodily injury and property damage of not less than $2,000,000 in the aggregate and $1,000,000 per occurrence.
6. Confidential Information and Intellectual Property.
(a) Definitions. The following terms have the following definitions in this Agreement.
(i) “Confidential Information” means and includes, but is not limited to, each of the following types of written, oral, computer, or graphic information used, owned, developed, made, invented, designed, conceived, conducted, improved, acquired, possessed or purchased by Tension (alone or jointly with others), whether or not such information is marked or designated as confidential or Trade Secret information:
(A) any financial information of Tension, including, but not limited to, costs, prices, margins, overhead, salaries, bids, proposals, commissions, profits, loans, financial plans, and the methods of determining any of the foregoing;
(B) any computer programs, software, source code, documentation, object code, protocols, designs, processes, methods, techniques, manuals, and media;
(C) any market plans; market surveys; strategies, tests; test methods; prototypes, and the results of any focus groups, surveys, and brand studies of Tension;
(D) any Inventions, Works, Trade Secrets and know-how;
(E) the identity of, or any lists of, Tension’s existing and prospective vendors, customers, contacts, and contracts with customers or vendors;
(F) any shortcuts, know-how, methods and processes used by Tension in connection with the creation, preparation, planning, design, development, testing, improvement, operation, pricing, costing, recording, tracking, sale or use of any of the matters listed above in this clause (vi);
(G) information obtained by Tension from its vendors, referral sources, customers or third parties; and
(H) other information of Tension shared with Vendor or that Vendor knows or should know, by virtue of the circumstances under which Vendor learned it, should be kept confidential.
Confidential Information does not include information in the public domain, provided it did not come into the public domain through Vendor’s unauthorized acts.
(ii) “Copyright” means the registrations of claims of copyright and applications therefor, together with any Works with respect to which claims of copyright may be registered under the laws of the United States or any foreign country.
(iii) “Intellectual Property” means all Patents, Copyright and Trade Secrets, together with all Inventions and Invention disclosures not yet the subject of patent applications and all know-how related to the forgoing.
(iv) “Invention” means and includes any new and useful process (including, without limitation, code), device, apparatus, method, machine, manufacture, discovery or composition of matter, or any new and useful improvement thereof, whether or not patentable.
(v) “Trade Secrets” means and includes, without limitation, Confidential Information, know-how, Inventions, Works, technical or nontechnical data, formulas, patterns, mechanical drawings, compilations, programs, code, devices, methods, techniques or processes (however documented and in any form or medium and wherever located, kept or maintained) and all other information that (A) derives independent economic value (actual or potential) from not being generally known to, and not being readily ascertainable by proper means by, a person able to obtain economic value from its use or disclosure; and (B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
(vi) “Works” means any and all original works of authorship, including, but not limited to, literary works, writings, texts, instructions, descriptions, computer programs, source code, object code, artistic works, graphs, designs, graphic displays or designs, architectural works, drawings, blueprints, recordings, photographs, videos, slides, motion pictures, recordings, pictures, and performances.
(b) Ownership and Assignment. Vendor assigns to Tension all Works, Inventions, Trade Secrets, Copyrights and other Intellectual Property conceived, developed, created, fixed in a tangible medium of expression or reduced to practice by Vendor, or by Vendor and others (jointly or severally), regardless of when or where such conception, development, creation, fixation or reduction to practice were done, if such Works, Inventions, Trade Secrets, Copyrights and other Intellectual Property are related to or were done in connection with Tension’s Confidential Information or Intellectual Property. Vendor shall cooperate with Tension (at Tension’s expense) in connection with obtaining legal protection or other rights relating to such Works, Inventions, Trade Secrets, Copyright and other Intellectual Property, including the execution of all applications, letters, assignments, transfers, declarations, affidavits, consents, waivers and other instruments necessary to secure and prosecute such protection or rights on such forms as Tension provides.
For clarity, Tension shall own, and control the use and disclosure of, all software source code (and related documentation) included in such Works, Inventions, Trade Secrets, Copyright and other Intellectual Property. Vendor shall not use, or share with third parties, any of such software (or its documentation) in any form.
The Services and Deliverables shall, when performed and delivered by Vendor, be accompanied by all related licensed software code, mechanical drawings and documentation, as may be further described in the applicable SOW. To the extent applicable given the nature of the Deliverables, Vendor grants to Tension a perpetual, nonexclusive, nontransferable, fully paid right and license to use the software embedded in the Deliverables.
(c) Notice. Vendor shall notify Tension in writing of all Works, Inventions, Trade Secrets, Copyright and other Intellectual Property conceived, developed, created, fixed in a tangible medium of expression or reduced to practice by Vendor, or by Vendor and others (jointly or severally), to the extent described in Section 6(b) above.
(d) Confidentiality. Vendor shall (i) keep all Trade Secrets and Confidential Information strictly confidential, (ii) not reveal, disclose, sell, offer to sell, copy, publish, transmit, transfer or distribute Confidential Information or Trade Secrets to any other person or entity, and (iii) not use, reverse engineer, decompile, disassemble Confidential Information or Trade Secrets or other Intellectual Property for any purpose other than as authorized by Tension in writing.
(e) Court Order/Subpoena. If Vendor receives a court order or subpoena requesting or requiring the disclosure or production of information that is (in whole or in part) Confidential Information or a Trade Secret, Vendor shall notify Tension immediately in writing of such receipt and provide Tension with a copy of the order or subpoena to enable Tension to seek a protective order with regard to the Confidential Information or Trade Secret. Vendor shall cooperate with Tension in such effort.
(f) Return. Upon the termination of this Agreement, and at any time upon Tension’s request for any reason, Vendor promptly shall:
(i) deliver up and return to Tension or, at Tension’s option, destroy or cause to be destroyed (in each case at Vendor’s expense) all copies, memoranda, notes, records, computers, papers, books, disks, tapes, recordings, mechanical drawings, sketches, videos, photographs, sketches, lists, Tension or client information, images, and all other media and physical objects and documentation whatsoever in its possession or control (including, without which shall include permanently erasing or deleting all electronic copies), whether made or compiled by Vendor alone or with others or made available to Vendor, comprising, containing, embodying, referencing, disclosing or used to access Confidential Information or Trade Secrets; and
(ii) deliver to Tension a certification of an executive officer of Vendor certifying in writing that Vendor has complied with the foregoing obligations.
Notwithstanding any such return or destruction (as applicable) of the Evaluation Material, Vendor shall continue to be bound by its confidentiality and non-disclosure obligations under this Agreement.
(g) Duration of Confidentiality and Trade Secrets Covenants.
(i) Trade Secrets. Vendor’s obligations under this Agreement with regard to Trade Secrets will remain in effect for as long as that information remains a trade secret under applicable law.
(ii) Confidential Information. Vendor’s obligations under this Agreement with regard to Confidential Information will remain in effect during the Term and for three (3) years thereafter.
(h) Defend Trade Secrets Act. Notwithstanding any provision of this Section 6 to the contrary, under the Defend Trade Secrets Act of 2016, an individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (i) is made: (A) in confidence to a Federal, state or local government official, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
7. Nonsolicitation. As a material inducement to Tension to enter into this Agreement, Vendor shall not employ or retain, directly or indirectly, in any capacity, during the Term and for three years thereafter, any employee of Tension involved with Vendor’s provision of Services or Deliverables to Tension under this Agreement without Tension’s prior written consent.
8. [Omitted]
9. Equitable Relief.
(a) Vendor has carefully read and considered Sections 6 and 7 and, having done so, Vendor acknowledges and agrees that:
(i) the restrictions set forth in Sections 6 and 7 (A) are fair and reasonable in duration, geographic scope and with respect to the activity or subject that is restricted, and (B) are reasonably required to protect (1) Tension’s legitimate business interests and its vendor, supplier and customer relationships, goodwill and loyalty, (2) the confidential nature of the Confidential Information and the Trade Secrets and (3) against the misuse or unauthorized disclosure of Tension’s Confidential Information and the Trade Secrets;
(ii) Sections 6 and 7 will not cause undue hardship to Vendor or unreasonably interfere with Vendor’s business prospects;
(iii) Because the Confidential Information and Trade Secrets are unique to Tension’s business, Tension would not reveal them to Vendor but for Vendor’s agreement to the restrictions set forth in this Agreement;
(iv) A breach of any of the provisions of Sections 6 and 7 would cause irreparable harm and damage to Tension; and in the event of any such breach, it would be extremely impracticable to measure the resulting damages and the remedies at law for the breach would not adequately compensate Tension and its related and affiliated business entities for the damages;
(v) Sections 6 and 7 will be construed as agreements independent of any other provision of this Agreement or any other agreement between the Parties, and the existence of any claim or cause of action by Vendor against Tension, whether predicated upon this Agreement or any other agreement, will not constitute a defense to Tension’s enforcement of Sections 6 and 7; and
(vi) If Vendor breaches any of the provisions of Sections 6 and 7, then (A) Tension will be entitled to injunctive relief, specific performance and/or any other equitable remedy that a court may provide (without posting any bond), in addition to any other remedies available at law or in equity, and (B) Vendor waives the defense that a remedy in damages will be adequate.
(b) The Parties intend that nothing contained in this Section 10 shall be construed to limit the right of Tension to any remedies at law or in equity, including Tension’s recovery of damages for Vendor’s breach of this Agreement, such rights being cumulative and not alternative.
(c) Notwithstanding anything contained in this Agreement to the contrary, if a court holds that any one or more of the provisions contained in Sections 6 and 7, for any reason, is excessively broad as to duration, geographical scope, activity or subject, the Parties intend that the provision be construed by limiting and reducing it so that it is enforceable to the extent compatible with the then applicable law in the jurisdiction in question, and Vendor agrees that the provision, as so reduced and limited, will be binding upon Vendor as if fully set forth in this Agreement.
10. Representations. Vendor represents that, other than this Agreement, it is not a party to any agreements with others concerning any Developments or Confidential Information that conflict with this Agreement, nor is it bound by any agreements or obligations that might conflict with this Agreement.
11. Personnel.
(a) Vendor shall require all of its employees, independent contractors and subcontractors (and their employees) (collectively, “Vendor Personnel”) to comply with the restrictive provisions of this Agreement as if they were the Vendor (including, without limitation, Sections 6 and 7). Vendor shall indemnify, defend, and hold harmless Tension from and against all Liability to the extent arising out of or on account of, or resulting from:
(i) The failure of Vendor or any Vendor Personnel to fulfill any obligation under this Agreement, including (A) any actual or alleged breach by Vendor or any Vendor Personnel of any provision of this Agreement; or (B) the employment of one or more of Tension’s employees;
(ii) the violation of any applicable law, order or regulation by Vendor or any Vendor Personnel,
(iii) Vendor’s misrepresentation or breach of warranty under this Agreement; or
(iv) the fault or negligence of Vendor or any Vendor Personnel.
12. Indemnity.
(a) Vendor shall defend, indemnify and hold harmless Tension and its officers, directors, employees and agents from and against all liabilities, judgments, losses, damages (including lost profits), administrative actions, causes of action, claims, demands, harm, injury, fines, penalties, assessments, costs and expenses (including attorney’s fees, court costs, investigative costs and amounts paid in settlement) of whatsoever kind and nature (together “Liability”), asserted against Tension (or any of the aforementioned persons) based on contract, tort or common law indemnity, or that Tension (or any of the aforementioned persons) otherwise incurs or suffers, that arise out of (i) Vendor’s breach of any of its obligations under this Agreement or (ii) the unauthorized disclosure or use by Vendor or Vendor Personnel of Tension’s Confidential Information, Works, Inventions, Trade Secrets, Copyright or Intellectual Property.
(b) Vendor shall indemnify, defend and hold harmless Tension and its officers, directors, employees and agents from and against all Liability for infringement of any patent, copyright, trade mark, or similar property right (including, but not limited to, misappropriation of trade secrets) based on any intellectual property, HTML code, images, illustrations, graphics, multimedia files, text, user information, hardware, machines, devices, methods and product information that are provided to Tension by Vendor for use by Tension with respect to the Deliverables (“Vendor Property”). If such infringement claim or action has occurred or, in Vendor’s judgment is likely to occur, Tension shall allow Vendor, at Vendor’s option and expense, to either:
(i) procure for Tension the right to continue using such Vendor Property;
(ii) modify such Vendor Property to become non-infringing (provided that such modification does not adversely affect the intended use of such Vendor Property by Vendor as contemplated under this Agreement);
(iii) replace such Vendor Property with an equally suitable, compatible and functionally equivalent non infringing deliverable and/or materials at no additional charge to Tension; or
(iv) if none of the foregoing alternatives is available to Vendor, then upon Vendor’s written request, (A) Tension shall return such Vendor Property to Vendor and thereafter be relieved of its obligations with respect to Deliverables that are dependent on such Vendor Property, and (B) Vendor shall promptly refund to Tension all amounts paid by Tension to Vendor with respect to such Deliverables.
(c) Notwithstanding any provision of this Agreement to the contrary, Tension shall not be liable for (and disclaims all responsibility for) any injury, loss, damage or expense, whether indirect, incidental, consequential or punitive, including, without limitation,
(i) for down time; loss of use, material, data, revenues or profits; corrupt data; service interruptions; errors in supply or failure of supply);
(ii) for costs and expenses incurred in connection with labor, overhead, transportation, installation or removal of equipment, programming, substitute facilities, supply sources, liability to third parties; or
(iii) for any cause, loss, action, claim or damage whatsoever for injury or death to persons or damage to property,
arising out of or related in any way to the Deliverables or the Services, regardless of whether Tension has been advised of the possibility of such cause, loss, action, claim, or damage.
(d) Notwithstanding anything in this Agreement to the contrary, the total liability of Tension for all claims, whether in contract, tort (including, but not limited to, negligence and product liability), or otherwise, arising out of, connected with, or resulting from this Agreement shall not exceed the total amounts paid by Tension to Vendor for the Deliverables and/or Services that give rise to the claim.
13. Change Orders. Any change (addition or deviation) that impacts the scope of the Services, including changes in the requirements or changes in the deliverables, shall be documented in accordance with the change request process set forth in the applicable SOW. Such change request process may be initiated by either Party. Vendor shall not commence work on any requested change, and neither Party shall have any liability with respect to any such change, until both Tension and Vendor have approved such request in writing.
14. Compliance with Law. Each Party shall comply with, and shall ensure that all of its personnel comply with, all applicable federal, state and local laws and ordinances and all orders, rules and regulations issued thereunder.
15. Other Provisions.
(a) Severability. If a court of competent jurisdiction holds that one or more of the provisions contained in this Agreement, or any application thereof, is invalid, illegal or unenforceable in any respect, then the validity, legality and enforceability of the remaining provisions of this Agreement or any other application thereof shall not in any way be affected or impaired thereby.
(b) Notices. All notices, requests, demands or other communications under this Agreement must be in writing, addressed to the Parties at the addresses set forth in the applicable SOW, or to such other addresses as to which the Parties give notice in accordance with this Section 15(c).
(c) Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the state of Missouri as they apply to contracts entered into and performed wholly within Missouri, without regard to its rules concerning conflicts of laws. The Parties consent to the exclusive jurisdiction of courts situated in the Circuit Court of Jackson County, Missouri or the United States District Court for the Western District of Missouri if any legal proceedings are instituted relating to this Agreement. Neither the 1980 United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transaction Act shall apply to this Agreement or to any sale or other transaction under this Agreement.
(d) Binding Effect. This Agreement is binding upon, and inures to the benefit of, the Parties and their respective successors and assigns.
Dispute Resolution. “Dispute” means a disagreement that the Parties have been unable to resolve by the normal and routine channels ordinarily used for such matters with service representatives or other designated personnel of each Party handling inquires and complaints through informal contact. The Parties intend that all Disputes arising under this Agreement be resolved expeditiously, amicably and at the level within each Party’s organization that is most knowledgeable about the disputed issue. Written notice shall be
(a) given by the disputing Party to the other Party detailing the Dispute. Both Parties shall use good faith to resolve the matter. If the Dispute remains unresolved at this level within each Party’s organization after a two (2) week period, the Dispute should be elevated within each Party’s organization to a higher level for a mutually satisfactory resolution within thirty (30) days of the written notice of the Dispute or within a mutually agreeable time. Final escalation within both organizations may be done to the level of the chief executive officer. If the Parties are still unable to reconcile the Dispute or if at any time during this process one Party deems to be appropriate, the Dispute may be taken to court by either Party under Section 15(c). Each Party shall bear its own expenses (including legal fees) with respect to any Dispute.
(b) Tension may amend these Terms & Conditions from time to time in its discretion, which amendments shall be effective prospectively upon posting by Tension.