The Terms and Conditions herein (the “Terms”) shall govern any Statement of Work (“SOW”) entered into between YOU (“Customer”) and Anexinet Corp. (“Anexinet”) containing reference to the Terms. In the event of a conflict between the SOW and the Terms, the SOW shall control. The Terms and the SOW shall be collectively referenced as the “Agreement.”
Anexinet will invoice Services (as set forth in the SOW) and any reasonable expenses in accordance with the SOW. Customer shall pay all invoices within thirty (30) days of the invoice date without deduction or setoff, except that customer may, in good faith, dispute any invoiced amount within thirty (30) days of the invoice date. Prices do not include and Customer will promptly pay all applicable taxes, except for taxes levied on Anexinet’s net income. Except as otherwise provided in Section 7, all payments become non-refundable upon receipt by Anexinet. Customer’s failure to make any payment for Services when due will constitute a material breach of this Agreement. If any payment becomes greater than thirty (30) days late, Anexinet may stop work or cease providing any Services and Customer will be responsible for reasonable costs of collection.
Anexinet will perform the Services in a professional and workmanlike manner in accordance with the standards of practice in the industry. EXCEPT AS SPECIFICALLY CONTAINED IN THIS SECTION 3, THE SERVICES AND ANY ANEXINET SUPPLIER’S PRODUCT WHERE APPLICABLE, ARE PROVIDED TO CUSTOMER WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WHETHER ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, SUCH AS ANY WARRANTY OF ACCURACY, COMPLETENESS, PERFORMANCE, CURRENCY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT OR TITLE.
4. Intellectual Property
Subject to Customer’s payment of all fees as required under this Agreement, all work product created under the SOW is and will be the exclusive property of Customer. Notwithstanding, Anexinet retains all ideas, methods, algorithms, formulae, concepts, designs, drawings, models, prototypes, techniques, know-how, information and technology which Anexinet (i) acquired or acquires from third parties other than Customer (ii) creates or created outside of its performance of its Services under the SOW, or (iii) relates to skills and knowledge of a general nature acquired by Anexinet in the course of performance of Services under the SOW and grants to customer a limited license to use, copy, modify, display, transform, and create derivative works of solely to the extent needed to fully receive and enjoy the Services.
The terms of the Mutual Non Disclosure Agreement (“NDA”) by and between the parties are incorporated herein by reference. In the event that the parties do not have an NDA in place, the parties understand that from time to time each party may provide Confidential Information to the other. The receiving Party shall only use Confidential Information internally for the purposes of this Agreement. The receiving Party shall, using no less than the same degree of care used to protect its own confidential information, but not less than a reasonable degree of care, keep confidential and not disclose the disclosing Party’s Confidential Information.
“Confidential Information” shall mean any information provided by the disclosing party that is either marked as confidential or proprietary or is of the type that the receiving party should reasonably know is confidential or proprietary.
So long as the SOW is active, and for a period of one (1) year thereafter, neither party shall employ, contract with for any service, or solicit for such the other party’s employees or contractors who have performed work under the SOW in the previous twelve (12) months (“Resources”). In the event that either party breaches this Section 6, the breaching party shall pay to the non-breaching party, as liquidated damages, a one-time payment in the amount of the greater of (i) 125% of the Resource’s base salary for the first six months of employment with the breaching party, or (ii) 125% of the amount the resource would have earned in the next six months with the non-breaching party. The parties agree that the payments set forth herein are a reasonable approximation of damages to the non-breaching party and are not a penalty.
7. Limitation of Remedies
The parties acknowledge that the provisions of this Agreement have been negotiated by them and reflect a fair allocation of risk that is reflected in the fees payable under this Agreement. Customer’s sole and exclusive remedy for Anexinet’s breach of the Warranties set forth in Section 3 shall be, at Anexinet’s option, re performance of the relevant Services or a refund of the appropriate portion of the fees paid by Customer for the Services. If Customer fails to bring any action related to this Agreement within two (2) years from its accrual, then Customer will be deemed to have waived whatever rights Customer may have had in relation to such cause of action.
8. Limitation of Liability
EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER OR ANY OTHER PERSON OR ENTITY FOR ANY AND ALL LIABILITIES ARISING UNDER THIS AGREEMENT, WHETHER IN TORT, CONTRACT OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID TO ANEXINET BY CUSTOMER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY OBLIGATION. IN NO EVENT WILL EITHER PARRY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR SIMILAR DAMAGES, SUCH AS DAMAGES FOR LOSS OF PROFITS, LOSS OF GOOD WILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF WORK PRODUCT, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ANEXINET BE LIABLE FOR THE COST OF COVER IN THE EVENT OF A BREACH OF WARRANTY BY ANEXINET OR OTHER FAILURE OF THE SERVICES. UNDER NO CIRCUMSTANCES SHALL ANEXINET BE LIABLE FOR CLAIMS OR LOSSES ARISING FROM OR RELATING TO CUSTOMER’S USE OF THIRD PARTY PRODUCTS OR SERVICES NOT SUPPLIED BY ANEXINET. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 WILL REMAIN FULLY OPERATIVE EVEN IF THE LIMITED REMEDIES SET FORTH IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE OR ARE OTHERWISE HELD TO BE UNENFORCEABLE.
a. Independent Contractors. The parties are independent contractors. Accordingly, Anexinet will, at all times and in its sole discretion, determine the manner and means by which Services will be performed, subject to the terms of this Agreement. Nothing contained in this Agreement will be construed or implied to create an agency, partnership or joint venture between the parties. At no time will either party make commitments or incur any charges or expenses for or on behalf of the other party without prior written consent. Neither party will be liable for any tax, withholding or other statutory obligation (including without limitation, workers’ compensation insurance) relating to the other party, any sub-contractor or the personnel of the other.
b. Governing Law. Pennsylvania law, without regard to any conflict of law principles, shall govern all matters related to this Agreement including without limitation its validity, interpretation, construction, and performance as well as all claims and causes of action whether arising under contract, tort, or any other legal theory. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply to this Agreement.
c. Counterparts; Electronic Signature. This Agreement may be (a) executed in several counterparts, all of which taken together will constitute the same instrument, and (b) delivered by ‘pdf’ or other electronic means, and upon such delivery, the ‘pdf’ or other electronic signature will be deemed to have the same effect as if the original signature had been delivered.
d. Modifications and Waiver. This Agreement may only be modified by a writing that is executed by authorized representatives of both parties. Customer’s subsequent purchase orders or other standard business forms will not constitute a modification of this Agreement, whether or not received, accepted, approved or signed by Anexinet. Any waiver must be express and in writing. No waiver by either party of a breach by the other party will constitute a waiver of any different or succeeding breach. Unless otherwise specified, all remedies are cumulative.
e. Severability and Reformation. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions of this Agreement will remain in full force and effect. Such invalid or unenforceable provision will be automatically revised to be a valid or enforceable provision that comes as close as permitted by law to the parties’ original intent.
f. Entire Agreement. This Agreement represents the entire agreement between the parties with respect to the Services and supersedes all other oral or written representations, statements, or agreements with respect to such subject matter.