The approved Work Order Contract by and between the Customer and Assemble will also be subject to these Terms and Conditions.
I. INTELLECTUAL PROPERTY RIGHTS
Each party will retain all right, title, and interest in and to its own Pre‐Existing Intellectual Property irrespective of any disclosure of such Pre‐Existing Intellectual Property to the other party, subject to any licenses granted herein.
ii.Pre‐Existing Intellectual Property.
Assemble will not use any Assemble or third party Pre‐Existing Intellectual Property in connection with this Contract unless Assemble has the right to use it for Customer’s benefit. If Assemble is not the owner of such Pre‐Existing Intellectual Property, Assemble will obtain from the owner any rights as are necessary to enable Assemble to comply with this Contract.
iii,Ownership of Deliverables.
Subject to Assemble and third party rights in Pre‐Existing Intellectual Property, all Deliverables, whether complete or in progress, and Intellectual Property Rights related thereto shall belong to Customer, and Assemble hereby assigns such rights to Customer. For instance, Assemble agrees that Customer will own copyrights covering the Deliverables and will have full rights to use the Deliverables.
iv.No Rights to Customer Intellectual Property.
Except for the limited license to use materials provided by Customer as may be necessary in order for Assemble to perform Work under this Contract, Assemble understands that it is granted no right, title, or interest in any Customer Intellectual Property.
i. Confidential Information.
For purposes of this Contract, “Confidential Information” shall mean information or material proprietary to a Party or designated as confidential by such Party (the “Disclosing Party”), as well as information about which a Party (the “Receiving Party”) obtains knowledge or access, through or as a result of this Contract. Confidential Information does not include: a) information that is or becomes publicly known without restriction and without breach of this Contract or that is generally employed by the trade at or after the time the Receiving Party first learns of such information; b) generic information or knowledge which the Receiving Party would have learned in the course of similar employment or work elsewhere in the trade; c) information the Receiving Party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; d) information the Receiving Party rightfully knew prior to receiving such information from the Disclosing Party to the extent such knowledge was not subject to restrictions on further disclosure; or (e) information the Receiving Party develops independent of any information originating from the Disclosing Party.
The Parties hereby agree that during the term hereof and for a reasonable amount of time thereafter, and except as specifically permitted herein or in a separate writing signed by the Disclosing Party, the Receiving Party shall not use, commercialize or disclose Confidential Information to any person or entity. Upon termination of this Contract, or at any time upon the request of the Disclosing Party, the Receiving Party shall destroy or return to the Disclosing Party all Confidential Information, including all notes, data, reference materials, sketches, drawings, memorandums, documentations and records which in any way incorporate Confidential Information.
III. CONFLICT OF INTEREST
Assemble represents that its execution and performance of this Contract does not conflict with or breach any contractual, fiduciary or other duty or obligation to which Assemble is bound.
Customer may terminate this Contract for its convenience, at any time, provided it gives 10-days prior written notice to Assemble. Assemble may terminate this Contract for its convenience, at any time, upon prior written notice to the Customer.
i. Upon termination of any Work ordered hereunder, Assemble will provide Customer with any and all Work-in-progress or completed prior to the termination date. Customer will pay Assemble a prorated amount, as determined by Assemble, for the Work-in-progress and the agreed price for any completed Deliverables provided and accepted prior to the date of termination.
ii. Upon termination of this Contract, Assemble shall promptly return to Customer confidential materials provided by Customer to Assemble.
iii. Any provision or clause in this Contract that, by its language or context, implies its survival shall survive any termination or expiration of this Contract.
Assemble and Assemble’s Flash TeamTM warrant that:
A. they will execute the Work and Services hereunder in a professional and workmanlike manner;
B. the Deliverables provided to Customer will meet the requirements and conform with any specifications agreed to by the Parties as summarized herein.
C. the Quote for the Work scoped herein will be the amount charged for that Work.
Customer warrants that:
A. it will support the Work conducted by Assemble or Assemble’s Flash TeamTM by contributing materials or knowledge and executing approvals as needed, in an efficient and expedited manner;
B. it agrees that the Work and Deliverable descriptions hereunder disclose any significant specifications or requirements that the Customer expects to see in the Deliverables.
Disclaimer of Warranties:
ASSEMBLE DOES NOT REPRESENT OR WARRANT THAT SAID WORK OR THE DELIVERABLES WILL CREATE ANY ADDITIONAL PROFITS, SALES, EXPOSURE, BRAND RECOGNITION, OR THE LIKE. ASSEMBLE HAS NO RESPONSIBILITY TO CUSTOMER IF THE WORK OR DELIVERABLES DO NOT LEAD TO CUSTOMER’S DESIRED RESULT(S).
VI. LIMITATION OF LIABILITY
i. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY DAMAGES RESULTING FROM ANY PART OF THIS AGREEMENT SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFIT OR LOST BUSINESS, COSTS OF DELAY OR FAILURE OF DELIVERY.
ii. Notwithstanding the foregoing, any purported limitation or waiver of liability shall not apply to the Parties’ obligations under the Confidential Information section of this agreement.
VII. INSPECTION AND ACCEPTANCE
i. Inspection and Acceptance
Customer will complete their payment for the Work upon the delivery of the Deliverables. Customer will inspect the Deliverables and approve their quality within five business days. Upon approval, or after five days, whichever is sooner, the Work related to this Contract will be considered complete.
ii. Non-Conforming Deliverables.
If any Deliverables delivered do not conform to specified requirements as summarized in this Contract, Customer may require the Assemble to improve the Deliverables until they conform with the requirements without additional cost to the Customer. If Non-Conforming Deliverables are identified, the Customer will inform Assemble within five business days of the Deliverables being delivered to the Customer (i.e. prior to the Contract being considered complete). And if such an event occurs, the Customer will work with Assemble to efficiently and effectively improve the Deliverables.
Assemble shall maintain adequate insurance coverage and minimum coverage limits for its business as required by any applicable law or regulation, including Workers’ Compensation insurance as required by any applicable law or regulation, or otherwise as determined by Assemble in its reasonable discretion.
This Contract will be binding upon the Parties’ heirs, executors, successors and assigns.
ii. Dispute Resolution.
a. Negotiation:The Parties shall make a good-faith effort to amicably settle by mutual agreement any dispute that may arise between them under this Contract.
b. Mediation/Arbitration:If good faith negotiation fails to resolve the dispute, either Party may initiate mediation or binding arbitration in a forum mutually agreed to by the Parties.
c. Litigation:If litigation is necessary, this Contract will be interpreted based on the laws of the State of Delaware, regardless of any conflict of law issues that may arise. The Parties agree that the dispute will be resolved in a court of competent jurisdiction in the agreed upon State.
d. Attorney’s Fees: The prevailing party will be able to recover its attorney’s fees and other reasonable costs for a dispute resolved by binding arbitration or litigation.
The Parties recognize the uncertainty of the law with respect to certain provisions of this Contract and expressly stipulate that this Contract will be construed in a manner that renders its provisions valid and enforceable to the maximum extent possible under applicable law. To the extent that any provisions of this Contract are determined by a court of competent jurisdiction to be invalid or unenforceable, such provisions will be deleted from this Contract or modified so as to make them enforceable and the validity and enforceability of the remainder of such provisions and of this Contract will be unaffected.
iv. Independent Relationship.
Nothing contained in this Contract shall create a legal partnership, an employer and employee relationship, a master and servant relationship, or a principal and agent relationship between Assemble and Customer, or between Assemble’s Flash TeamTM members and the Customer. Customer and Assemble agree that Assemble and its independent contractors are, and at all times during this Contract shall remain, independent from Customer.
v. Force Majeure.
Neither Party shall be liable for any failure to perform under this Contract when such failure is due to causes beyond that Party’s reasonable control, including, but not limited to, acts of state or governmental authorities, acts of terrorism, natural catastrophe, fire, storm, flood, earthquakes, accident, and prolonged shortage of energy. In the event of such delay, the date of delivery or time for completion will be extended by a period of time reasonably necessary by both Assemble and Customer. If the delay remains in effect for a period in excess of thirty days, Customer may terminate this Contract immediately upon written notice to Assemble (see Termination).
vi. Entire Contract.