The following Terms and Conditions (“Terms”) stated below reflect the agreement between the company identified on the Sales Quotation\Estimate (“Buyer”) and NexTech Solutions LLC (“Seller”), in connection with the quotations and resulting orders for the products and services identified on the Buyer’s purchase order. Any modifications or additions to these terms and conditions must be agreed to in writing by NexTech Solutions LLC.
1. ACCEPTANCE AND TERMS AND CONDITIONS: Buyer accepts this Quotation\Estimate and any amendments by issuing a Purchase Order to the Seller against the quotation. By acceptance of this Quotation, Buyer agrees to be bound by, and to comply with all these Terms, which include any supplements to it, and all specifications and other documents referred to in the Quotation. These Terms apply to everything listed in this Quotation and constitute Seller’s offer to Buyer, which Seller may revoke at any time prior to Buyer’s acceptance. These Terms may be modified only by a written document signed by duly authorized representatives of Buyer and Seller.
2. QUOTATION VALIDITY: All quoted prices, other charges and lead-times are valid for a period of thirty (30) days from the date of quotation unless otherwise noted on the quotation. Extension of this validity period will be considered when requested.
3. CREDIT TERMS AND PAYMENT: NexTech Solutions, LLC reserves the right to review the credit history of the Buyer prior to order acceptance. C.O.D terms may apply and will be so stated on the face of the quotation. Unless otherwise annotated on quotation, all invoices are due and payable within thirty (30) days from the date of the invoice (if approved for credit terms). A one and a half percent (1½%) service charge per month will be added to invoices that are not paid according to terms. All pricing assumes payment by check or electronic means. All payments via credit card will incur a convenience fee not to exceed 3% of the purchase price.
4. TAXES: All prices will be quoted, all orders accepted, and all invoices presented, will be exclusive of all federal, state and local excise, sales, value added and similar taxes. Sales tax shall be added at the time of an invoice, unless a copy of a valid tax exemption or resale certificate is provided by Buyer.
5. DELIVERY: Delivery of products by NexTech Solutions, LLC will be within the quoted lead-time shown on the quotation, or to the delivery date acknowledged by NexTech Solutions, LLC. Deliveries based on monthly releases against the Buyer’s purchase order are subject to review, acceptance or mutually negotiated schedules, NexTech Solutions, LLC shall use its best endeavor to meet agreed delivery dates but shall not be held liable for noncompliance due to uncontrollable conditions.
6. METHODS OF SHIPMENTS: All shipments are F.O.B. U.S.A. The method of shipment is the Buyer’s option and so stated in the Buyer’s purchase order. If no method of shipment is stated by the Buyer, NexTech Solutions, LLC will choose a method that insures safe, undamaged, timely delivery of the product.
7. WARRANTY: When NexTech Solutions, LLC resells Original Equipment Manufacturer (OEM) Products and Services, the OEM Warranty supersedes NexTech Solutions, LLC’s Warranty. Unless otherwise noted a return material restocking fee of 20% of the purchased price will apply. Return shipping charges will be at the responsibility of the Buyer. NexTech Solutions, LLC warrants that the custom product delivered to the Buyer will be free of defects in materials and workmanship. The warranty period will be thirty (days) days from the date of the products invoices / shipment. During that thirty (30) day period, it is the Buyer’s obligation to inspect, accept or reject the product. Notice of rejection must be submitted to NexTech Solutions, LLC, who (at its option) can authorize the return of the product for reinspection, repair or remanufacture. Refunds or Credits for Custom Products and Solutions are not authorized. All Sales on Custom Products and Solutions are final. NexTech Solutions, LLC reserves the right to request samples of the rejected product for inspection and evaluation. If product is returned and subsequently found by NexTech Solutions, LLC to be compliant with acknowledged specifications, the product will be reshipped and payment will be due per the original invoice or if a debit was prepared by the Buyer, will be reinvoiced for immediate payment. Any and all returns must be authorized by NexTech Solutions, LLC issuing a return material authorization number (RMA); Returned product not referencing a RMA number cannot be accepted by NexTech Solutions, LLC’s Receiving Department. OTHER THAN AS SET FORTH ABOVE, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NOR ANY PRODUCT SOLD HEREUNDER, WHETHER SUCH PRODUCT IS USED ALONE OR IN COMBINATION WITH ANY OTHER MATERIAL.
8. LIMITATION OF LIABILITY: (A) NexTech Solutions, LLC liability on any claim for loss of damage arising out of an order or sales contract shall not exceed the total value stated on NexTech Solutions, LLC’s invoice. (B) If NexTech Solutions, LLC furnished technical or other advice to the Buyer, whether or not at Buyer’s request, with respect to processing, further manufacture, other use or resale of goods NexTech Solutions, LLC shall not be liable for, and the Buyer assumes all risk of such advice and the results thereof.
9. PATENTS, COPYRIGHT AND TRADEMARK INDEMNITY: NexTech Solutions, LLC assumes no consequential or other liability and the Buyer agrees to indemnity and hold NexTech Solutions, LLC harmless against any and all liability expenses, losses and/or damages caused by infringement of any patent, copyright or trademark.
10. CHANGES: Any changes to the product specification, purchase order, pricing, delivery schedule and other specific terms in the original quotation and/or acknowledged order are subject to the review and acceptance of NexTech Solutions, LLC. Changed which alter the original scope of the work to be performed and which have any cost impact must be mutually negotiated, accepted in writing, reflected in a revised purchase order before implementation of the change.
11. TOOLING, DIES, TEST FIXTURES, DRAWING, ETC.: (A) Unless otherwise specifically agreed upon in writing between the Buyer and NexTech Solutions, LLC, all tooling, dies, test fixtures and all drawing (Hereafter referred to as “Tooling”) used by NexTech Solutions, LLC to manufacture the product, shall remain the exclusive property and under the exclusive control of NexTech Solutions, LLC and shall not be deliverable to the Buyer. (B) The “Tooling” charges presented by NexTech Solutions, LLC to the Buyer at time of quotation and subsequently included in the Buyer’s purchase order and finally invoiced by NexTech Solutions, LLC and payment rendered by Buyer, are only an estimate of the costs to produce the “Tooling”. Ownership of the “Tooling” from NexTech Solutions, LLC to the Buyer can only transfer after NexTech Solutions, LLC Quotes the charges related to the fair market value of the “Tooling” and the Buyer consents, in writing, to pay this amount. Unless otherwise agreed to, sale, transfer, delivery of the “Tooling” to the Buyer is on a sold “AS IS” basis without any warranties whatsoever.
12. BUYERS FURNISHED MATERIAL(S): Orders requiring the use of the Buyer’s raw material, components and/or equipment are accepted subject to mutually agreed to delivery of said materials. If said material and/or equipment are deemed by NexTech Solutions, LLC to be defective, NexTech Solutions can cease performance on the Buyer’s order(s) until a remedy to the defective material(s) is provided and NexTech Solutions concurs with said remedy.
13. COMPLIANCE WITH LAWS: The rights and obligations of NexTech Solutions, LLC and the Buyer with respect to NexTech Solutions’ quotation and the resulting Buyer’s contract shall be governed by the laws of the State of Florida, U.S.A. and any applicable United States of America Federal law or statute.
14. TERMINATION: Any order may be terminated by the Buyer upon not less that fortyfive (45) days prior written notification to NexTech Solutions, LLC, subject to the following conditions: (A) Buyer will accept delivery of, and pay for, all products which are completely manufactured as of the effective date of termination. (B) NexTech Solutions, LLC will advise the Buyer in writing as to the Buyer’s liability for work-in-process material and labor costs actually incurred plus a reasonable profit. Once advised, the buyer shall cooperate to negotiate acceptance and effect payment for any and all of these costs. Additionally, if “Tooling” costs are to be included in termination charges, costs will be derived as per paragraph 10(b) herein. (C) If mutual agreement cannot be reached as to the results of the termination, NexTech Solutions, LLC reserves the right to remedy the matter in the courts per paragraph 12 herein.
15. ASSIGNMENT: Buyer shall not (by operation of law or otherwise) assign its rights or delegate its performance hereunder without prior written consent of Seller and any attempted assignment or delegation without this written consent will be void.
16. NOTICE: All notices and communication required or permitted to be given to NexTech Solutions, LLC shall be in writing and shall be given by registered or certified mail, postage and fees prepaid and sent to the address on the front of the quotation or order acknowledgment.
17. BUYER’S DEFAULT: Upon the happening of any one or more of the following events; (A) Buyer’s default in the payment of any sum due to Seller hereunder. (B) Buyer’s default in the performance of any other provision of these terms and conditions for a period of more than ten (10) days after delivery of written notice of such defaults Buyer by Seller. Then NexTech Solutions, LLC (Seller), at its option, may exercise one or more of the following options: (1) Withhold delivery of any goods which are subject of the order of sales contract. (2) Stop deliver of good in the possession of a carrier or other parties and cancel the order or sales contract. (3) Exercise any and all right and privileges that Seller may have under the laws of either the State of Florida or the United States of America or both. All of the above and none other constitute the entire terms and conditions of quotation and sale by NexTech Solutions, LLC.
18. MISCELLANEOUS: (a) FORCE MAJEURE: Seller may delay delivery occasioned by causes beyond its control. (b) REMEDIES: Each of the rights and remedies reserved to Purchaser in this Order shall be cumulative and additional to any other remedies provided in law or equity. No delay or failure by Purchaser in the exercise of any right or remedy shall affect any such right or remedy and no action taken or omitted by Purchaser shall be deemed to be a waiver of any such right or remedy. (c) GOVERNING LAW: This Quotation, these Terms, and all related transactions, will be interpreted under and governed by the laws of the State of Florida in the United States of America without regard to its conflict of law principles. (d) DISPUTE RESOLUTION: Disputes arising under this Agreement will be resolved by the parties through good faith negotiations in the ordinary course of business. Any dispute not so resolved will be submitted for binding arbitration, at the written request of either party, before a single arbitrator under the JAMS Streamlined Arbitration Rules and Procedures in the State of Florida or at another location as mutually agreed. Selection of the arbitrator will be by mutual agreement of the parties or, failing agreement within twenty (20) days, by JAMS pursuant to its then-current rules. The amount and responsibility for payment of arbitration costs will be one of the issues decided by the arbitrator, whose decision will be in accordance with the terms and conditions of this Agreement. No damages excluded by or in excess of the damage limitations set forth in this Agreement shall be awarded. During any such arbitration, the parties will continue diligent performance of this Agreement. The arbitrator will render a written decision stating reasons therefore in reasonable detail within ninety (90) days after the respondent receives the Commencement Letter. The provisions of this section, and any award issued by an arbitrator, may be enforced by either party in any court of competent jurisdiction. Arbitration is the exclusive remedy for disputes arising under this Agreement; the parties hereby waive their rights to bring a lawsuit to resolve a dispute arising under this Agreement.
The following standard Purchase Order Terms and Conditions (“Terms”) only apply to transactions that do not have a written agreement, duly executed by both parties. If there is such an agreement, then those terms shall be the terms that govern the transaction and relationship of the parties. In the absence of such a written agreement, duly executed by both parties, then these Terms provide you (“Seller”) with the guidelines and legal stipulations of your purchase order (“Order”) with the NexTech Solutions LLC (“Purchaser”) for the goods and/or services that are described on the face of the Order. Any modifications or additions to these terms and conditions must be agreed to in writing by NexTech Solutions LLC.
1. ACCEPTANCE AND TERMS AND CONDITIONS: Seller accepts this Order and any amendments by signing the acceptance copy of the Order and returning it to Purchaser promptly. Even without such written acknowledgment, Seller’s full or partial performance under this Order will constitute acceptance of these Terms. By acceptance of this Order, Seller agrees to be bound by, and to comply with all these Terms, which include any supplements to it, and all specifications and other documents referred to in this Order. These Terms apply to everything listed in this Order and constitute Purchaser’s offer to Seller, which Purchaser may revoke at any time prior to Seller’s acceptance. This Order is not an acceptance by Purchaser of any offer to sell, any quotation, or any proposal. Reference in this Order to any such offer to sell, quotation, or proposal will not constitute a modification of any of these Terms. Terms and conditions different from or in addition to these Terms, whether contained in any acknowledgment of this Order, or with delivery of any goods or services under this Order, or otherwise, will not be binding on Purchaser, whether or not they would materially alter this Order, and Purchaser hereby rejects them. These Terms may be modified only by a written document signed by duly authorized representatives of Purchaser and Seller.
2. DEFAULT: Time is of the essence of this Order. Purchaser may by written notice of default to Seller (a) terminate all or any part of this Order if Seller fails to perform, or so fails to make progress as to endanger performance of this Order in accordance with its terms, and does not cure such failure within a period of ten (10) days (or such longer period as Purchaser may authorize in writing) after receipt of notice from Purchaser specifying such failure; and (b) procure, on such terms as it will deem appropriate, goods or services similar to those so terminated. Seller will continue performance of this Order to the extent not terminated and will be liable to Purchaser for any excess costs for such similar goods or services. As an alternate remedy, and in lieu of termination for default, Purchaser, at its sole discretion, may elect to extend the delivery schedule and/or waive other deficiencies in Seller’s performance, in which case an equitable reduction in the Order price will be negotiated. If Seller for any reason anticipates difficulty in complying with the required delivery date, or in meeting any of the other requirements of this Order, Seller will promptly notify Purchaser in writing. If Seller does not comply with Purchaser’s delivery schedule, Purchaser may require delivery by fastest way and charges resulting from the premium transportation must be fully prepaid and absorbed by Seller. The rights and remedies of Purchaser provided in this Section 2 will not be exclusive and are in addition to any other rights and remedies provided by the Uniform Commercial Code, by law, at equity or under this Order.
3. PRICE: This Order must not be filled at a price higher than shown on the face of the Order. If no price is set forth on the front of the Order, the goods or services will be billed at the price last quoted or at the prevailing market price, whichever is lower, and, in any event, goods and services ordered under this Order will not be billed at a higher price than last quoted or charged without Purchaser’s specific written authorization. Purchaser will be entitled at all times to set off any amount owed at any time by Seller or any of its affiliates to Purchaser or any of its affiliates against any amount payable at any time by Purchaser in connection with this Order. No extra charges of any kind will be allowed unless specifically agreed to in writing by the Purchaser. All applicable taxes arising out of transactions contemplated by the Order will be borne by Seller except as otherwise specified by the parties in writing. If Seller reduces its prices for such goods and/or services during the term of this Order, Seller shall correspondingly reduce the prices of goods and/or services sold thereafter to Purchaser under this Order.
4. INVOICES, PAYMENT, AND TAXES: (a) Invoices shall be rendered on completion of services or delivery of goods and shall contain the Purchase Order Number, item number, description of goods or services, quantities, unit prices, date(s) rendered and total purchase price. Each invoice must refer to one, and only one, purchase order. (b) Invoices for labor services must contain all the above where applicable and include a copy of the time tracking document for each labor service for the time period being billed. (c) Payment shall be made as per terms of the Order. In the absence of terms, payment will be made net 60 days from the date of invoice. All claims for money due or to become due from Purchaser shall be subject to deduction by Purchaser for any setoff or counterclaim arising out of this or any other of Purchaser’s Orders with Seller. (d) Seller recognizes that Purchaser will be treated as a tax-exempt entity when annotated on Order, and Purchaser will provide Seller with its exemption certificate on request. All invoices of Seller to Purchaser shall exclude taxes that are excludable under Purchaser’s taxexempt status.
5. PACKAGING: All goods must be packaged in the manner specified by Purchaser and shipped in the manner and by the route and carrier designated by Purchaser. If Purchaser does not specify the manner in which the goods must be packaged, Seller shall package the goods so as to avoid any damage in transit. If Purchaser does not specify the manner of shipment, route, or carrier, Seller shall ship the goods at the lowest possible transportation rates, consistent with Seller’s obligation to meet the delivery schedule set forth in this Order.
6. INSPECTION: All goods and services will be subject to inspection and test by Purchaser at all times and places, including the period of manufacture and in any event prior to final acceptance. Final acceptance or rejection of the goods or services will be made as promptly as practical after delivery except as otherwise provided in this Order, but failure to inspect and accept or reject goods or services or failure to detect defects by inspection, will neither relieve Seller from responsibility for such goods or services as are not in accordance with this Order nor impose liabilities on Purchaser for them. Purchaser’s payment for the goods shall not constitute its acceptance of the goods. Goods rejected and goods supplied in excess of quantities ordered may be returned to the Seller at Seller’s expense. Payment, if any, made for any goods rejected hereunder shall be promptly refunded by Seller. Seller will provide and maintain an inspection and process control system acceptable to Purchaser covering the goods and services ordered. Records of all inspection work by Seller will be kept complete and available to Purchaser during the performance of this Order and for seven (7) years after Seller’s completion of this Order. If any of the goods or services are found at any time to be defective in material or workmanship, or otherwise not in conformity with the requirements of this Order, including any applicable drawings and specifications, then Purchaser, in addition to such other rights and remedies it may have by contract or by law or equity, at its sole discretion may reject and return such goods at Seller’s expense, require Seller to inspect the goods and remove nonconforming goods and/or require Seller to replace nonconforming goods or services with conforming goods or services. If Seller fails to make the necessary inspection, removal, and replacement in a time and manner satisfactory to Purchaser, Purchaser may at its option inspect and sort the goods; Seller will pay any related costs.
7. WARRANTIES: Seller represents and warrants that (a) all goods and services are free of any claim of any nature by any third person and that Seller will convey clear title to Purchaser, (b) all services are performed in a manner acceptable in the industry and in accordance with generally accepted standards, are free from all defects, are fit for the particular purposes for which they are acquired, and are provided in strict accordance with the specifications or other requirements (including performance specifications) approved or adopted by Purchaser, (c) all goods sold will be of merchantable quality, free from all defects in design, workmanship and materials, and fit for the particular purposes for which they are purchased and that the goods and services are provided in strict accordance with the specifications, samples, drawings, designs or other requirements (including performance specifications) approved or adopted by Purchaser, (d) the prices for the goods or services sold to Purchaser under this Order are not less favorable than those currently extended to any other customer for the same or similar goods and/or services in equal or lesser quantities, and (e) Seller shall not act in any fashion or take any action that will render Purchaser liable for a violation of any applicable anti-bribery legislation (including without limitation, the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010), which prohibits the offering, giving, or promising to offer or give or receiving, directly or indirectly, money or anything of value to any third party to assist it, them or Purchaser in retaining or obtaining business or in procuring the goods or services. Purchaser’s inspection, test, acceptance, or use of the goods shall not affect Seller’s obligations under these warranties. Seller shall replace or correct, at Purchaser’s option and at Seller’s cost, defects of any goods not conforming to these warranties. If Seller fails to correct defects in or replace nonconforming goods within ten (10) days from the date the Purchaser notifies Seller of the defect or defects, Purchaser may, on ten (10) days prior written notice to Seller, either (i) make such corrections or replace such goods and charge Seller for all costs incurred by Purchaser, or (ii) revoke its acceptance of the goods in which event Seller shall be obligated to refund the purchase price and make all necessary arrangements, at Seller’s cost, for the return of the goods to Seller. All warranties of Seller herein or that are implied by law shall survive any inspection, delivery, acceptance, or payment by Purchaser. Any attempt by Seller to limit, disclaim, or restrict these warranties or any remedies of Purchaser, by acknowledgment or otherwise, in accepting or performing this Order, will be null, void, and ineffective without Purchaser’s written consent.
8. INDEMNIFICATION: Seller shall indemnify and hold Purchaser and its affiliates harmless and, on Purchaser’s request, shall defend each of them from and against any or all third party claims, demands, litigation, or proceedings of whatever kind, whether based upon negligence, breach of express or implied warranty, strict liability, infringement of intellectual property rights, or any other theory, and from and against all direct, indirect, special, exemplary, incidental or consequential damages of every kind whatsoever, arising out of, by reason of, or in any way connected with the goods and/or services, the design, manner of preparation, manufacture, construction, completion, or delivery or non-delivery of any goods and/or services by Seller, any breach by Seller of any of its obligations hereunder, or any other act, omission or negligence of Seller or any of Seller’s employees, workers, servants, agents, subcontractors, or suppliers. Seller shall, on request, pay or reimburse Purchaser or any other party entitled to indemnification hereunder for all costs and expenses, including attorneys’ fees, as incurred by Purchaser or such other party in connection with any such claim, demand, litigation, proceeding, loss, or damage. In addition, for infringement claims, Seller will, at its own expense and at Purchaser’s option, either procure for Purchaser the right to continue using the allegedly infringing item, replace it with a non-infringing equivalent, or remove it and refund the purchase price and the transportation and installation costs thereof.
9. LIMITATION OF LIABILITY: PURCHASER’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS ORDER IS LIMITED TO THE AMOUNT PAID BY PURCHASER FOR THE GOODS AND/OR SERVICES. TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, PURCHASER SHALL NOT BE LIABLE UNDER THIS ORDER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUES EVEN IF PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. PURCHASER’S PROPERTY: Tangible or intangible property of any nature furnished to Seller by Purchaser or specifically paid for in whole or in part by Purchaser, and any replacements or attachments, are the property of Purchaser and, unless otherwise agreed in writing by Purchaser, will be used by Seller solely to render services or provide goods to Purchaser. Seller will not substitute any property or take any action inconsistent with Purchaser’s ownership of such property. While in Seller’s custody or control such property will be held at Seller’s risk, will be kept insured by Seller at its expense for its replacement cost with loss payable to Purchaser, and will be subject to removal at Purchaser’s written request, in which event Seller will prepare such property for shipment and redelivery to Purchaser in the same condition as originally received by Seller, reasonable wear and tear excepted, all at Seller’s expense.
11. CHANGES: At all times Purchaser will have the right to make changes to this Order, including changes to drawings, designs, configurations, specifications, quantities, methods of shipment or packing and delivery schedules or location of delivery. If any such changes cause an increase or decrease in the cost of or the time required for the performance of any work under this Order, an equitable adjustment will be made in the contract price or delivery schedule, or both, and this Order will be modified in writing accordingly. Nothing in this Section, including any disagreement with Purchaser as to any claimed adjustment, will excuse Seller from proceeding with this Order as changed. Any claim by the Seller for adjustment under this Section 11 must be in a detailed writing and delivered to Purchaser within five (5) days after the date Seller receives notification of change. Any change will be authorized only by a duly executed amendment to this Order. Information, such as technical information or guidance provided to Seller by representatives of Purchaser, will not be construed as a change within the meaning of this Section. If Seller considers that the conduct of any of Purchaser’s employees has constituted a change under this Order, Seller will immediately notify Purchaser’s Central Procurement Office, in writing, as to the nature of the change and any proposed adjustment, which will then be subject to this Section 11.
12. COMPLIANCE WITH LAWS: Seller represents and warrants that it is in compliance with and all goods and/or services supplied hereunder have been produced or provided in compliance with the applicable provisions of all federal, state, or local laws or ordinances and all related lawful orders, rules and regulations. Seller shall comply with any provisions, representations, or agreements, or contractual clauses required to be included or incorporated by reference or operation of law in any Order. Seller shall be required to obtain and pay for any license, permit, inspection or listing by any public body or certification organization required in connection with the manufacture, performance, completion or delivery of any good and/or service.
13. CONFIDENTIAL OR PROPRIETARY INFORMATION: Notwithstanding any document marking to the contrary, any knowledge or information that the Seller has disclosed or may later disclose to Purchaser, and which in any way relates to the goods or services covered by this Order will not, unless otherwise specifically agreed to in writing by Purchaser, be deemed to be confidential or proprietary information, and will be acquired by Purchaser, free from any restrictions. Seller will not transmit to Purchaser any sensitive personal information, including, but not limited to, identified health information, financial information, social security numbers, biometrics or other personally identified or identifiable information of like sensitivity. Seller will keep confidential any technical, process, economic, or other information derived from drawings, specifications and other data furnished by Purchaser in connection with this Order (in whatever form or format) and will not divulge, export, or use, directly or indirectly, such information for the benefit of any other party without obtaining Purchaser’s prior written consent. Except as required for the efficient performance of this Order, Seller will not use such information or make copies or permit copies to be made of such drawings, specifications, or other data without the prior written consent of Purchaser. If any reproduction is made with prior consent, this notice will be provided. Upon completion or termination of this Order, Seller will promptly return to Purchaser all materials incorporating any such information and any copies, except for one record copy. Seller agrees that no acknowledgment or other information concerning this Order and the goods or services provided will be made public by Seller without the prior written agreement of Purchaser.
14. ASSIGNMENT: Assignment of this Order or any interest in it or any payment due or to become due under it, without the written consent of the Purchaser, will be void. An assignment will be deemed to include not only a transfer of this Order or such interest or payment to another party but also a change in control of Seller, whether by transfer of stock or assets, merger, consolidation, or otherwise.
15. WORK ON PURCHASER’S PREMISES: If Seller’s work under this Order requires Seller to be on the premises of Purchaser or at Purchaser’s direction, Seller will take all necessary precautions to prevent any injury to persons or damage to property, including following any rules, procedures or other requirements of Purchaser.
16. INSURANCE: Seller will maintain Comprehensive General Liability (including Contractual Liability coverage insuring the liabilities assumed in these Terms), Automobile Liability and Employers’ Liability insurance with limits as reasonably required by Purchaser, as well as appropriate Workers’ Compensation insurance as will protect Seller from all claims under any applicable workers’ compensation and occupational disease acts. At Purchaser’s request, Seller will furnish to Purchaser a Certificate of Insurance completed by its insurance carrier(s) certifying that the required insurance coverage is in effect, with waiver of subrogation, naming Purchaser as an additional insured, and containing a covenant that such coverage and will not be canceled or materially changed until ten (10) days after prior written notice has been delivered to the Purchaser.
17. TERMINATION: Purchaser may terminate all or any part of this Order for convenience at any time by written notice to Seller. Upon such termination, Purchaser’s liability will be limited to reasonable termination charges mutually agreed by Seller and Purchaser, provided that Seller must specify any proposed charges in writing within fifteen (15) days after termination. This Order shall terminate automatically, without notice, if Seller becomes insolvent or the subject of any proceeding under the laws relating to bankruptcy or the relief of debtors.
18. GOVERNMENT CONTRACTS: If this Order bears a government contract number on the face of this Order, Seller shall comply with all pertinent provisions of said government contract and pertinent executive orders and directives to the extent that they apply to the subject matter of this Order and all such pertinent contract provisions, orders and directives are hereby incorporated by reference into this Order. A copy of the government contract’s pertinent terms and conditions will be given to Seller on request.
19. MISCELLANEOUS: (a) TRANSPORTATION: All the prices are established as F.O.B. Seller and/or Origin Dock, Freight Prepaid, unless otherwise specifically provided on the front of this Order. Title and risk of loss shall not pass to Purchaser until delivery of the goods to the location designated on the face of this Order and acceptance by Purchaser. If Purchaser rightfully rejects the goods, receives a non-conforming tender, or revokes its acceptance, risk of loss and title shall be deemed to have remained with Seller. The responsibility for freight damaged merchandise will be assumed by Seller. No charges for unauthorized transportation will be allowed. Any unauthorized shipment, which will result in excess transportation charges, must be fully prepaid by the Seller. Seller will not declare any value on such materials shipped via United Parcel Service, Rail Express, Air Express, Air Freight or Parcel Post. Seller will release rail or truck shipments at the lowest released valuation permitted in the governing tariff or classification. (b) ANTICIPATION OF DELIVERY SCHEDULE: Unless otherwise agreed in writing, Seller will not make material commitments or production arrangements in excess of the amount or in advance of the time necessary to meet Purchaser’s delivery schedule. Goods shipped to Purchaser in advance of schedule may be returned to Seller at Seller’s expense. (c) SELLER’S INVENTORY: Purchaser will have no obligation to request quotations or place Orders with Seller, both of which will be in Purchaser’s sole discretion. Purchaser acting in its sole discretion will determine the actual quantity of goods or services to be purchased. The quantity of goods or services, if any, specified in forecasts supplied by Purchaser from time to time, or otherwise, is an estimate only. Seller bears sole responsibility for managing Seller’s raw material, work in process, and inventory, and Purchaser will have no liability with respect thereto (whether upon termination of this Order or otherwise) other than in connection with termination as provided in Section 17. (d) FORCE MAJEURE: Purchaser may delay delivery and/or acceptance occasioned by causes beyond its control. (e) REMEDIES: Each of the rights and remedies reserved to Purchaser in this Order shall be cumulative and additional to any other remedies provided in law or equity. No delay or failure by Purchaser in the exercise of any right or remedy shall affect any such right or remedy and no action taken or omitted by Purchaser shall be deemed to be a waiver of any such right or remedy. (f) PUBLICITY: Seller will not use Purchaser’s name or logo in publicity, advertising, or similar activity, except with Purchaser’s prior written consent. Seller will not disclose the existence of this Order or any of its respective terms to any third party without Purchaser’s prior written consent. (g) DOCUMENTATION: It is agreed that all technical documentation and other literature necessary for the proper use of the goods or services will be provided to Purchaser with the goods or services, unless otherwise directed by Purchaser, and its cost is included in the price. (h) GOVERNING LAW: This Order, these Terms, and all related transactions, will be interpreted under and governed by the laws of the State of Florida in the United States of America without regard to its conflict of law principles. (i) DISPUTE RESOLUTION: Disputes arising under this Agreement will be resolved by the parties through good faith negotiations in the ordinary course of business. Any dispute not so resolved will be submitted for binding arbitration, at the written request of either party, before a single arbitrator under the JAMS Streamlined Arbitration Rules and Procedures in the State of Florida or at another location as mutually agreed. Selection of the arbitrator will be by mutual agreement of the parties or, failing agreement within twenty (20) days, by JAMS pursuant to its then-current rules. The amount and responsibility for payment of arbitration costs will be one of the issues decided by the arbitrator, whose decision will be in accordance with the terms and conditions of this Agreement. No damages excluded by or in excess of the damage limitations set forth in this Agreement shall be awarded. During any such arbitration, the parties will continue diligent performance of this Agreement. The arbitrator will render a written decision stating reasons therefore in reasonable detail within ninety (90) days after the respondent receives the Commencement Letter. The provisions of this section, and any award issued by an arbitrator, may be enforced by either party in any court of competent jurisdiction. Arbitration is the exclusive remedy for disputes arising under this Agreement; the parties hereby waive their rights to bring a lawsuit to resolve a dispute arising under this Agreement. (j) SURVIVAL: Seller’s obligations under Sections 6, 7, 8, 9, 10, 12, 13, and 19 (e), (h), (i), (j), (k), (m), and (o) will survive any termination of this Order. (k) WAIVER; MODIFICATION: No claim or right arising out of a breach of this Order can be discharged in whole or in part by a waiver or renunciation of the claim or right unless supported by consideration and in a writing signed by the aggrieved party. The failure of Purchaser to enforce at any time or for any period of time any of the provisions hereof will not be construed to be a waiver of such provisions or of the right of Purchaser thereafter to enforce each and every such provision. This Order can be modified or rescinded only by a writing signed by authorized representatives from both parties. (l) NOTICES: All notices, consents, waivers, and other communications required or permitted to be given pursuant to this Order, shall be in writing and shall be deemed to have been delivered either (i) on the delivery date, if personally delivered, or if delivered by confirmed facsimile or e-mail, (ii) one (1) business day after delivery to any national overnight courier directing delivery on the next business day, receipt requested, or (iii) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, with adequate postage affixed thereto. All notices to Purchaser shall be sent to NexTech Solutions LLC (NTS) at 4265 Eagle Landing Pkwy., Orange Park, FL 32065, to the attention of Chief Operations Officer (COO), and to Seller at its address as set forth in this Order, or at such other address as either party may designate in writing to the other party. (m) SEVERABILITY: If any provision of this Order shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable, this provision shall not affect any other provision or provisions contained in this Order. (n) PARAGRAPH TITLES: The paragraph titles are solely for convenience of reference and shall not affect the meaning or construction of any provision of this Order. (o) ENTIRE AGREEMENT: Provided that there is no written agreement, duly executed by both parties, applying to the transaction, this Order, with such documents as are expressly incorporated by reference, is intended by the parties as a final expression of their agreement with respect to such terms as are included in it, and is intended also as a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties and no usage of the trade will be relevant to determine the meaning of this agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection.
NEXTECH SOLUTIONS, LLC SOFTWARE LICENSE AGREEMENT
This Software License Agreement (“Agreement”) is made by and between NexTech Solutions, LLC (“NexTech” or “Licensor”) and [Licensed], (“Name” or “Licensee” collectively the “Parties”). This Agreement was last updated on the ___ day of ______, 2022 and shall be deemed effective between NexTech and the Licensee as of the date of the Licensee’s acceptance (“Effective Date”).
1. DEFINITIONS
1.1. “Hardware” means any computer hardware and/or other equipment that NexTech determines is necessary for the operation of the Software and which may be provided to Licensee hereunder by NexTech.
1.2. “Software” means the computer programs, databases, and related products together with all files required for their proper operation and all associated tools, utilities, programs, and files NexTech provides to Licensee hereunder, including but not limited to the web-enabled services, web portals, user interfaces, and features.
1.3. “System“ means collectively, all Software, Hardware, documentation, and/or other materials provided by NexTech to Licensee relating to this Agreement.
1.4. “Third-Party Application” means computer software programs and other technology that are provided or made available to Licensee or Authorized Users by third parties, including those with which the Software may interoperate, including, for example, CRM, email, or sales and marketing automation software, if any.
2. SOFTWARE LICENSE
2.1. Limited License. Subject to the terms and conditions of this Agreement, including without limitation the Licensee’s payment of the fees specified in the herein, NexTech grants to Licensee a non-exclusive, non-transferable, limited license to access and use the Software during the Term (see Section 5 infra).
2.2. Updates. Licensee understands and acknowledges that the contents of the Software will change over time as it is updated and that at any given time, it has a right to access and use the Software to which it is subscribed as it exists at that time. Certain portions of the Software may be provided by NexTech’s third-party licensors, and NexTech’s ability to provide such portions of the Software may be subject to the willingness of such licensors to continue to contract with NexTech. Features and functions of the Software are provided “as is” and as they may be modified, supplemented, or removed from time to time at NexTech’s sole discretion. NexTech shall have no liability to Licensee for any modification to the Software.
2.3. Ownership. Licensee acknowledges and agrees that, as between Licensee and NexTech, the Software and any related documentation (including, without limitation, the content, layout, functions, design, appearance, trademarks, service marks, copyrights, patents, and other intellectual property comprising the Software) are the property of NexTech, whether or not they are trademarked, copyrighted, or patented. Licensee acknowledges and agrees that this Agreement does not transfer any ownership, right, title, or interest in the Software, nor any part thereof, except the limited license provided hereunder, and Licensee expressly disclaims and waives any and all claims to any ownership interest in any such information or materials. Subject to the limited rights expressly granted hereunder, NexTech, its affiliates, and/or its licensors reserve all right, title, and interest in and to the Software, including all related intellectual property rights. No rights are granted to Licensee hereunder other than as expressly set forth herein. The Parties agree that any separate copyright or other intellectual property rights of any nature that come into existence at any time as a result of any use, modification or alteration of the System, or entry of data into the System, created by or for Licensee, shall vest solely in NexTech, and Licensee assigns all rights, title, and interest, including, but not limited to, copyright in the modifications to the System and related data to NexTech.
2.4. Third-Party Applications. NexTech is not responsible for and does not endorse any Third-Party Applications. Licensee’s use of Third-Party Applications is subject to the terms and conditions imposed by the providers thereof.
2.5. Support. NexTech will provide reasonable assistance and ongoing support to assist Licensee and Authorized Users in setting up and accessing the Software. NexTech will make its personnel available by telephone between the hours of 8:00 a.m. and 5:00 p.m. Eastern Time (Monday – Friday) and provides twenty-four-hour support via email. NexTech will make reasonable efforts to acknowledge all support requests within 24 business hours.
2.6. Availability. NexTech will use all commercially reasonable efforts to make the Software available 24 hours a day, 7 days a week, except for: (i) planned downtime, and (ii) unavailability caused by circumstances beyond NexTech’s reasonable control, including, without limitation, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, Third-Party Application, or denial of service attack.
3. AUTHORIZED USE OF SOFTWARE; RESTRICTIONS
3.1. Authorized Users. Licensee shall be entitled to designate as Authorized Users such number of persons as stated in Exhibit A, attached hereto. If Licensee designates additional persons as Authorized Users beyond the number subscribed, such designation may be deemed by NexTech, to be confirmed by notice to Licensee, as Licensee’s subscription to such additional number of Authorized Users. In the event of such subscription, NexTech may charge Licensee additional subscription fees equal to the prevailing per-Authorized User rate multiplied by the period from the date of notice hereunder until the end of the then-current Term. Each Authorized User will be provided a unique username and password. Such usernames and passwords may not be shared and may not under any circumstances be used by anyone who is not an Authorized User. If any Authorized User’s login credentials are disclosed to any person who is not an Authorized User but who would satisfy the qualification requirements of Section 3.2 hereof, NexTech may, upon notice to Licensee, deem such sharing to be Licensee’s subscription to the number of additional Authorized Users equal to the number of persons to whom such credentials were disclosed. Licensee shall be responsible for compliance with the terms of this Agreement by all Authorized Users, including, without limitation, the restrictions on use and access to the Software set forth herein. Licensee acknowledges and agrees that Authorized Users must provide NexTech with certain identifying information, including their name and a business email address, and that Authorized Users are required to accept this Agreement in order to access the Software.
3.2. Qualification of Authorized Users. Licensee shall not designate any person as an Authorized User unless such person is: (1) a natural person and (2) an employee of Licensee. Licensee may designate a non-employee (i.e., an independent contractor) as an Authorized User only with NexTech’s prior permission and provided Licensee takes reasonable steps to ensure such non-employee uses the Software only as permitted under this Agreement. If the employment of any Authorized User that was in effect as of the date such person was designated as an Authorized User terminates, such person’s authorization to access the Software shall be revoked automatically without any further action by NexTech. In the event of termination, as described in the previous sentence, the Licensee shall promptly notify NexTech and take all reasonable steps to ensure that such person ceases accessing the Software. Licensee may reassign Authorized User designations at any time subject to the foregoing qualification requirements.
3.3. Authorized Uses, Restrictions. Licensee shall not access or use the Software for any purpose except the business-to-business sales, marketing, or business development activities of Licensee. Licensee will not (i) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from the Software; (ii) reproduce, modify, create, or prepare derivative works of the Software or related documentation; (iii) distribute or display the Software or related documentation other than to Authorized Users; (iv) share, sell, sublicense, rent, or lease or otherwise distribute access to the Software, or use the Software to operate any timesharing, service bureau, or similar business; (v) create any security interest in the Software; (vi) alter, destroy, or otherwise remove any proprietary notices or labels on or embedded within or on the Software or related documentation; or (vii) use automated means, such as bots or crawlers, to access the Software or extract information therefrom. Licensee may use the Software only in accordance with this Agreement and not for the benefit of any third party, except with NexTech’s express prior written permission. Upon expiration or termination of this Agreement for any reason, the Licensee shall cease accessing the Software.
3.4. Unauthorized Access and Use. In the event, NexTech has a reasonable belief that Licensee or any Authorized User is engaged in any unauthorized access or use of the Software in violation of this Agreement, NexTech, in its sole discretion, may immediately suspend Licensee’s access to the Software until such violation is resolved to NexTech’s reasonable satisfaction. NexTech will have no liability to Licensee for such period of suspension, and a suspension shall have no effect on the Term of this Agreement nor on Licensee’s obligation to pay the fees specified in Exhibit A.
4. PAYMENTS.
4.1. License Fees. Before using the System or any copy thereof, and upon each anniversary of the Effective Date during the Term (as defined below), Licensee shall pay to NexTech the License Fees set forth on Exhibit A.
4.2. Service Fees. Fees for the Support Services (as defined below) as set forth on the attached Exhibit A are due and payable by Licensee in accordance with the terms set forth on Exhibit A.
4.3. Taxes. All payments required by this Agreement are exclusive of federal, state, local, and foreign taxes, duties, tariffs, levies and similar assessments, and Licensee agrees to bear and be responsible for the payment of all such charges imposed, excluding taxes based upon NexTech’s net income. Licensee shall pay directly and indemnify NexTech against and repay NexTech on demand for any and all taxes, fees, or charges, such as but not limited to, local, state, or federal sales, use, excise, personal property, value-added, excise, income, franchise, ad valorem, or stamp taxes; levies; customs duties; or import fees, together with any loss, liability, claim, costs or expenses, interest, or penalties incurred by NexTech as a result of Licensee’s failure to pay any such taxes when due.
4.4. Payment Terms. The License Fees are due and payable as set forth on Exhibit A. All payments shall be made in U.S. dollars unless otherwise explicitly agreed on in writing by both parties. Any amounts due NexTech under this Agreement that are not paid within thirty (30) days after they are due under this Agreement shall incur interest at the rate of 1 1/2 percent per month. The interest shall be calculated from the date payment is originally due until the date payment is made in full. Licensee shall pay such interest, with all payments first being applied to interest and then to principal. Licensee shall pay to NexTech any attorney’s fees and other costs NexTech incurs in enforcing its rights in relation to any overdue payment.
5. TERM AND TERMINATION
5.1. Term and Termination. This Agreement is not cancellable and shall remain in effect for twelve (12) months from the Effective Date, or earlier if terminated according to the terms of this Agreement (the “Term“). This Agreement shall be automatically extended for one additional year, unless on or before eleven (11) months from the Effective Date, or eleven (11) months before the expiration of any extended term, either Party provides to the other written notice of its desire not to automatically renew this Agreement.
5.2. Effect of Termination. Upon expiration or termination of this Agreement for any reason, Licensee acknowledges and agrees that its access to the Software may be automatically terminated, all passwords and individual accounts removed, and all information that has been uploaded into NexTech’s systems by Licensee or its Authorized Users destroyed.
6. CONFIDENTIALITY
6.1. Confidential Information. Each party acknowledges that all data and information supplied to it by the other party in connection with this Agreement, including the terms as set forth in this Agreement, is confidential and/or proprietary. All Confidential Information received by either party shall only be used for purposes documented and mutually agreed to in this Agreement or expressly authorized by the providing party. Each party shall protect and preserve all Confidential Information from unauthorized access and disclosure to third parties (other than any agents, consultants, employees, or representatives of that party who agree to be bound by the confidentiality provisions of this Agreement) using the same degree of care, but no less than a reasonable degree of care, as it uses to protect its own valuable and confidential information of a like nature.
In the event that a party wishes to disclose the other party’s Confidential Information to any other person or entity, or copy or otherwise reproduce any such Confidential Information, that party shall first obtain the other party’s prior written approval, which that party may provide or withhold in its sole discretion.
For the purposes of this Agreement, Confidential Information shall not include data and/or information that: (a) is known by the other party at the time of disclosure as evidenced by written records of that party; (b) has become publicly known and made generally available through no wrongful act of that party; (c) is rightfully obtained by that party from any third party without restriction and without breach of this Agreement or breach of any other agreement by such third party or its predecessors; or (d) is disclosed by that party without restriction pursuant to judicial action or government regulations or other requirements; provided that that party has given the party disclosing the Confidential Information advance notice of any such requirement of disclosure and cooperates with the disclosing party if that party elects to pursue legal means to contest and avoid such disclosure. The commitments pursuant to this section of this Agreement shall continue during the Term and survive the termination of this Agreement for five (5) years. Periodically, with reasonable notice and during normal business hours, each party may require the other party to furnish information relating to that party’s efforts to fulfill its obligations of confidentiality under this Agreement.
6.2. Trade Secrets. NexTech considers the System and all databases and files associated with operating the System, along with training materials and supporting documentation, to be a trade secret. NexTech does not disclose any information to NexTech competitors or potential competitors, and Licensee shall not disclose any such material to any competitor or potential competitors of NexTech. Licensee shall not use this trade secret design, code, or documentation gained by access to the System to develop a competing product or service or share any portion thereof with competitors or potential competitors of NexTech.
7. REPRESENTATIONS AND WARRANTIES
7.1. Mutual Representations and Warranties. Each party represents and warrants that: (a) it is duly organized and validly existing and authorized to do business in the jurisdictions where it operates; and (b) it has the requisite power and authority to enter this Agreement and entering and complying with its obligations under this Agreement does not violate any legal obligation by which such party is bound.
7.2. Licensee’s Representations and Warranties. Licensee represents and warrants, and covenants that it will not, in connection with this Agreement, including its use of or access to the Software, engage in, encourage, or permit conduct that violates or would violate any applicable law, rule, or regulation or any right of any third party.
8. DISPUTE RESOLUTION
8.1. Attorney Fees. In the event of any dispute arising under this Agreement, the prevailing party shall be entitled to recover its reasonable costs and expenses actually incurred in endeavoring to enforce the terms of this Agreement, including reasonable attorney fees.
8.2. Arbitration. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Claims shall be heard by a single arbitrator. The place of arbitration shall be Tampa, Florida. The arbitration shall be governed by the laws of the State of Florida. Leave the arbitration clause silent regarding the scope of exchange of electronic information. The arbitration will be based on the submission of documents, and there shall be no in-person or oral hearing. The decision of the arbitrator shall be final and binding upon the Parties. Judgment upon the arbitration award may be entered in any court having jurisdiction. Notwithstanding the foregoing, Licensee recognizes that the breach of this Agreement may cause irreparable harm to NexTech for which monetary damages may be insufficient, and in the event of such disclosure, NexTech shall be entitled to seek an injunction, temporary restraining order, or other provisional remedy as appropriate without being required to post bond or other security. The arbitrator shall award to the prevailing party, if any, as determined by the arbitrators, all of their costs and fees. “Costs and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrator’s fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys’ fees. The award of the arbitrators shall be accompanied by a reasoned opinion. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
9. INDEMNIFICATION
Licensee agrees to indemnify, defend, and hold harmless NexTech and its officers, directors, employees, agents, partners, successors, and permitted assigns from and against any and all actual or threatened claims of third parties arising out of or in connection with (a) Licensee’s access or use of the Software in violation of any law, (b) Licensee’s violation of any provision of this Agreement, or (c) the use of the Software by any third party to whom Licensee has granted access (including access obtained through use of the usernames and passwords assigned to Licensee and its personnel).
10. INTELLECTUAL PROPERTY INFRINGEMENT
10.1. Defense and Indemnification. NexTech will, at its expense, defend Licensee or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Licensee or alleging that Licensee’s use of the Software infringes or misappropriates any Intellectual Property Rights of any third party, and indemnify Licensee from all damages, costs, and attorneys’ fees finally awarded in any such Claim or paid to any third party to settle any such Claim. NexTech’s obligation under this section is contingent on: (a) Licensee giving NexTech prompt written notice of the Claim; (b) Licensee granting NexTech full and complete control over the defense and settlement of the Claim; and (c) Licensee providing assistance in connection with the defense and settlement of the Claim as NexTech may reasonably request, at NexTech’s cost. Licensee will not defend or settle any Claim eligible for indemnification under this section without NexTech’s prior written consent.
10.2. Infringement Remedy. If Licensee is enjoined or otherwise prohibited from using the Software or a portion thereof based on an allegation that the Software violates any third party Intellectual Property rights (including a Claim), or if NexTech reasonably determines that such prohibition is likely, then NexTech will, at its sole expense and option: (a) obtain for Licensee the right to use the allegedly infringing portions of the Software; (b) modify the allegedly infringing portions of the Software so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Software with non-infringing items of substantially similar functionality. If NexTech determines that the foregoing remedies are not commercially reasonable, then NexTech may terminate the impacted Service Request, or portion thereof, and will promptly provide a prorated refund to Licensee for any prepaid fees received by NexTech for any Software that have not yet been performed at the time of termination.
10.3. Exclusions from Obligations. NexTech will have no obligation under this Section for any infringement or misappropriation to the extent that it arises out of or is based upon (a) use of the Software in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) any aspects of the Software that are provided to comply with designs, requirements, or specifications required by or provided by Licensee, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Software by Licensee for purposes not intended or outside the scope of the license granted to Licensee; (d) Licensee’s failure to use the Software in accordance with written instructions provided by NexTech, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Software not made or authorized in writing by NexTech where such infringement or misappropriation would not have occurred absent such modification.
10.4. LIMITED REMEDY. THIS SECTION 10 STATES NEXTECH’S SOLE AND EXCLUSIVE LIABILITY AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR THE ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT BY THE SERVICES. NEXTECH’S OBLIGATIONS UNDER THIS SECTION 10 ARE SOLELY FOR INFRINGEMENT DAMAGES AND COSTS AWARDED AGAINST THE LICENSEE. IN NO EVENT SHALL ANY OTHER LIABILITY OF NEXTECH TO LICENSEE EXCEED THE AGGREGATE AMOUNT OF THE APPLICABLE SUBSCRIPTION FEES RECEIVED BY NEXTECH FOR THE ALLEGEDLY INFRINGING SOFTWARE OR ANY PART THEREOF. YOU AGREE THAT THE FOREGOING STATES LICENSEE’S EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED PATENT OR COPYRIGHT INFRINGEMENT OR TRADE SECRET MISAPPROPRIATION.
11. LIMITATION OF LIABILITY
EXCLUDING INTELLECTUAL PROPERTY MATTERS AS DETAILED IN SECTION 10, NEXTECH’S LIABILITY TO LICENSEE UNDER OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO ACTUAL DAMAGES AND SHALL NOT EXCEED THE AMOUNT PAID BY LICENSEE TO NEXTECH PRO-RATED FOR THE THREE (3) CALENDAR MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL NEXTECH BE LIABLE TO LICENSEE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR GOODWILL) RELATED TO THIS AGREEMENT AND/OR THE SOFTWARE, OR ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, INCLUDING CONTRACT, WARRANTY, TORT, STRICT LIABILITY, INDEMNITY OR NEGLIGENCE, EVEN IF NEXTECH HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
12. DISCLAIMER OF WARRANTIES
EXCEPT FOR ANY EXPRESS REPRESENTATIONS AND WARRANTIES STATED HEREIN, THE SOFTWARE IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, AND NEXTECH MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.
13. AUDIT
During the Term of this Agreement and for a period of two (2) years after its expiration or termination, Licensee shall maintain complete and accurate records of Licensee’s use of the Software sufficient to verify compliance with this Agreement. Licensee shall permit NexTech and its auditors, upon reasonable advance notice and during normal business hours, to examine such records and any systems used by Licensee in connection with the Software. The scope of any such audit will be limited to verification of Licensee’s compliance with the terms of this Agreement. Any audit performed under this paragraph shall be at NexTech’s expense unless the audit uncovers material non-compliance with the Agreement, in which case, the Licensee shall reimburse NexTech for its reasonable out-of-pocket expenses incurred in performing such audit.
14. MISCELLANEOUS
14.1. Federal Government End Use Provisions. If Licensee is a U.S. federal government end user, The Software and any related documentation are “Commercial Items,” as defined in 48 C.F.R. §2.101, as the terms are defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Software is licensed to Licensee with only those rights as provided under the terms and conditions of this Agreement. The use, duplication of or disclosure of the Software and any related documentation by the U.S. Government is subject to the restrictions set forth in FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and, for Department of Defense purchases, DFARS 252.227-7015 (Technical Data – Commercial Items) and 227.7202-3 (Rights in Commercial Computer Software or Commercial Computer Software Documentation), as applicable. Accordingly, all U.S. Government Users acquire the Software and its documentation with only those rights set forth herein. The developer and manufacturer is NexTech Solutions LLC, 4265 Eagle Landing Pkwy, Orange Park, FL 32065.
14.2. Compliance with Laws. Licensee is solely responsible for ensuring that Licensee’s and its Authorized Users’ use of the Software complies with all applicable federal, state, local, and foreign statutes, rules, regulations, orders, and restrictions of any domestic or foreign government or any instrumentality or agency thereof having jurisdiction over the conduct of Licensee’s business and that Licensee has filed, obtained, maintained or submitted all necessary licenses, reports, documents, forms, notices, applications, records, submissions, and supplements or amendments required by law.
14.3. Export Regulations. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Software. Licensee agrees that such export laws govern Licensee’s use of the Software provided under this Agreement, and Licensee agrees to comply with all such export laws and regulations including, without limitation, the U.S. Export Administration Regulations (EAR), the International Traffic in Arms Regulations (ITAR) and the various U.S. trade sanctions regulations administered by the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) that prohibit or restrict the export, re-export, or transfer of products, technology, services or data, directly or indirectly, to or for certain prohibited destinations or designated parties. Licensee agrees that no data, information, software programs, and/or materials resulting from Software will be exported, directly or indirectly, in violation of these laws and regulations, or will be used for any purpose prohibited by these laws and regulations including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology. Licensee agrees to strictly comply with all such laws and regulations and acknowledges your responsibility to obtain licenses for export, re-export, or import of the Software, as may be required. This export control provision shall survive the expiration or termination of this Agreement.
14.4. Governing Law. Any dispute in connection with this Agreement shall be governed by the laws of the State of Florida, excluding its choice of law rules. Each party irrevocably consents to the personal jurisdiction of the state and federal courts located in the State of Florida for purposes of any lawsuit seeking to enforce this Agreement if not governed by the Agreement’s arbitration provision.
14.5. Assignment. NexTech may assign this Agreement to a successor-in-interest pursuant to a merger, stock sale, or asset sale. Licensee shall not assign its rights or delegate its obligations under this Agreement without NexTech’s prior written consent.
14.6. Suggestions and Feedback. NexTech shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Software any suggestions, enhancement requests, recommendations, or other feedback provided by Licensee, including Authorized Users, relating to the Software.
14.7. Publicity. NexTech may use Licensee’s name and logo to identify Licensee as a customer of NexTech. NexTech’s use of the name and logo does not create any ownership right therein, and all rights not granted to NexTech are reserved by Licensee. Licensee may contact NexTech and request that the User name be excluded from use by emailing DBDK@nextechsol.com.
14.8. Notices. Licensee shall provide an email address for notices under this Agreement. All notices or other communications permitted or required to be given hereunder shall be sent by electronic mail to the email address provided by the other party for such purpose and shall be deemed given when sent. Notices to NexTech shall be sent to DBDK@nextechsol.com. If Licensee fails to provide an email address for notices, NexTech may provide notices hereunder by any means reasonably calculated to provide Licensee with actual notice thereof.
14.9. Amendment. NexTech may propose amendments to this Agreement at any time by providing notice of such proposed amendments in a manner permitted hereunder. Such proposed amendments shall be deemed accepted and become part of this Agreement thirty (30) days after the date such notice is given unless Licensee informs NexTech that it does not accept such amendments. In the event Licensee informs NexTech that it does not accept the proposed amendments, the proposed amendments will not take effect, and the existing terms will continue in full force and effect. No other modification or claimed waiver of any provision of this Agreement shall be valid except by a written amendment signed by authorized representatives of NexTech and Licensee.
14.10. Force Majeure. NexTech and its affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including without limitation, acts of God, fire, strikes or labor disputes, electrical or power outages, natural disasters, the elements, epidemics, civil disturbances, acts of terrorism, war, or acts or orders of government.
14.11. Entire Agreement. This Agreement constitutes the entire Agreement of the parties and supersedes all prior communications, understandings, and agreements relating to the subject matter hereof, whether oral or written. Any un-expired subscription set forth in any other agreement between the parties for access to NexTech Software shall be governed by the terms hereof.
14.12. Severability. The Parties acknowledge that this Agreement is reasonable, valid, and enforceable. However, if any term, covenant, condition, or provision of this Agreement is held to be invalid, void, or unenforceable, it is the Parties’ intent that such provision be changed in scope only to the extent deemed necessary to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired, or invalidated as a result.
14.13. Waiver. The waiver by either party of a breach or a default of any provision of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party.
14.14. Advice of Counsel. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective duly authorized officers and have duly executed and delivered this Agreement as of the Effective Date.
NEXTECH SOLUTIONS, LLC LICENSEE
Signature: Signature:
Printed Name: Printed Name:
Title: Title:
EXHIBIT A
1. System and Terms
Software name:
Credentials:
Hardware:
Documentation:
2. License Fees
3. Payment
Licensee shall pay NexTech the Licensee Fees listed in Paragraph 2 above annually in advance, initially upon the Effective Date, and thereafter fifteen (15) days before any additional Term.
