DEFINITIONS.Each term defined in the preamble of this Agreement has its assigned meaning. In addition to the defined terms set forth in the preamble and throughout this Agreement, certain capitalized terms are defined as follows:
“Agreement” means the General Terms and Conditions and all Exhibits, Schedules, and attachments that refer to this Agreement, as amended from time to time.
“Confidential Information” means any information or material, in any form, related to the operations, business, products, affairs, and finances of either Party or a third party, disclosed by or on behalf of either Party, that (a) is marked or identified as “confidential” or with a similar designation, or (b) by its nature or the circumstances of its disclosure ought reasonably to be treated as confidential. Without limiting the preceding sentence, the software and any databases of CodeHunter (including any data models and data contained in them that are not specific to Vendor) shall constitute Confidential Information of CodeHunter.
“Deliverables” mean the content, advertising materials, or other items to be provided or actually provided by Vendor to CodeHunter under this Agreement, including items specifically designated or characterized as deliverables in a Statement of Work.
“CodeHunter Data” means any information, content, concepts, information, data, records, materials, processes, software, and tools, computer facilities, computer systems, network and systems, files, documentation, sample output, or other information, data and resources of CodeHunter (including any modifications to that data, records and information, any derivative works created from it, and any sorting routines applied to it) to which Vendor has access or is otherwise provided to Vendor for the performance of Services.
“Intellectual Property” means (a) anything protectable by an Intellectual Property Right, including, but not limited to, all algorithms, application programming interfaces (APIs), concepts, data, databases and data collections, designs, diagrams, documentation, drawings, flow charts, formulae, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing and development plans, marks (including brand names, product names, logos, and slogans), methods, models, network configurations and architectures, procedures, processes, protocols, schematics, software code (in any form including source code and executable or object code), specifications, subroutines, techniques, uniform resource identifiers including uniform resource locators (URLs), user interfaces, web sites, works of authorship, and other forms of technology; and (b) Confidential Information.
“Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in Intellectual Property of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.
“Pre-Existing Property” means any inventions or developments made by Vendor prior to the effective date of the applicable Statement of Work or outside the scope of this Agreement, in each case, independent of, without use of, and without reference to CodeHunter Confidential Information and CodeHunter Data and not in connection with any of the Services.
“Services” means Vendor’s development for CodeHunter the Deliverables described in each Statement of Work mutually executed by an authorized representative of each Party. Services includes the services to be performed or actually performed by Vendor under this Agreement.
“Specifications” means: (a) the requirements of this Agreement; (b) the Statements of Work, as attached and as modified and appended, including all documents incorporated therein; and (c) all other performance requirements included or incorporated by reference into this Agreement.
“Statement of Work” or “SOW” means any written work order or statement of work, signed by the Parties, as amended from time to time in writing, that contains the terms (including specifications, delivery and performance schedules, and fees) for the Services and Deliverables that CodeHunter desires Vendor to provide for CodeHunter.
“Vendor Intellectual Property” or “Vendor IP” means all: (a) Pre-Existing Property; and (b) Vendor’s Confidential Information, software, methodologies, tools, compilers, specifications, concepts, techniques, documentation and/or data utilized by Vendor in the performance of the Services, together with any and all additions, enhancements, improvements or other modifications to it (whether or not made during the performance of the Services), which has been created, originated, acquired, obtained or developed by Vendor, its affiliates or by third parties either prior to the commencement of the Services or outside of the scope of the Services.
“Vendor Personnel” means the employees, agents, contractors, subcontractors, or representatives of Vendor, and Vendor subcontractors, who perform any Services under the Agreement.
“Work Product” means the Deliverables, the Intellectual Property Rights associated with the Deliverables, and any other forms of technology or Intellectual Property made or conceived or actually or constructively reduced to practice during the term of this Agreement, whether solely or jointly with others, and which are suggested by, or derive or result from any Services which Vendor may perform on behalf of CodeHunter, or from any information obtained by Vendor from CodeHunter or in discussions and meetings with employees of CodeHunter.
TERM.
Agreement. This Agreement shall be effective upon the Effective Date and remain in full force and effect for so long as one or more Statements of Work remain in effect and shall terminate upon fulfillment and duties of the Parties in all of the Statements of Work or as provided for in Section 13 (Termination) below (“Term”).
IDENTIFICATION OF PARTIES.
Engagement. Subject to the terms and conditions set forth in this Agreement, CodeHunter engages Vendor, and Vendor agrees to be engaged, to provide the Services and any Deliverables thereunder.
Subcontracting. Vendor shall perform the obligations described in this Agreement itself and through its direct wholly owned subsidiaries, provided such subsidiaries are disclosed in writing to CodeHunter. Vendor may not assign, delegate or subcontract neither this Agreement nor any of its rights, duties or obligations under this Agreement without CodeHunter’s prior express written consent. Notwithstanding any CodeHunter consent to any subcontracting, Vendor shall remain responsible for all performance required under this Agreement. Vendor shall be (i) solely responsible for ensuring the compliance of its subcontractors with all relevant terms of this Agreement and (ii) jointly and severally liable with its subcontractors for any breach of this Agreement by a subcontractor.
Assignment. The Agreement will be binding on the Parties and their respective successors and assigns. The Parties may not assign the Agreement, in whole or in part, without the express prior written consent of the other Party, provided that consent shall not be unreasonably withheld. Despite the previous sentence, CodeHunter shall have the right to assign this Agreement, or any rights or obligations under it, to a successor in connection with a merger, acquisition, change of control, reorganization, or sale or all or substantially all of CodeHunter’s assets. Any unauthorized assignment of this Agreement is void.
SERVICES.
Statements of Work. Vendor and CodeHunter will develop and enter into one or more Statements of Work incorporating a description of the Services requested by CodeHunter. Each SOW will set forth, to the extent applicable, the project scope, schedule, any various project activities and tasks to be performed by the Parties and the roles and responsibilities of the Parties. Each SOW will further describe, if applicable, the Deliverables and the Acceptance Criteria (as defined in Section 4.4) for each of the Deliverables. To the extent there are any conflicts or inconsistencies between this Agreement and any SOW, the provisions of this Agreement will govern and control unless the Parties have expressly provided in such SOW that a specific provision in this Agreement is amended, in which case this Agreement will be so amended, but only with respect to that SOW.
Performance of Services. Vendor will perform the Services in a professional and competent manner and in material accordance with the standards set forth in this Agreement and any applicable SOW. In the absence of such standards, Vendor will perform the Services in accordance with the highest professional service standards for its industry. Vendor will provide, at its own expense, the work facilities at the location set forth in a Statement of Work and all equipment, tools, and other materials necessary to complete the Statement of Work. However, to the extent necessary to facilitate performance of the Services and for no other purpose, CodeHunter, in its sole discretion, may make its equipment or facilities available to Vendor at Vendor’s request. Time is of the essence in the performance of the Services and Vendor’s other obligations under this Agreement.
Modification. CodeHunter may at any time request a modification to the Services pursuant to any particular SOW by written request to Vendor specifying the desired modifications, including requests for changes in project plans, scope, specifications, schedule, designs or requirements (each, a “Change Order”). If a Change Order does not require Vendor to incur any additional material costs or expenses or otherwise change Vendor’s obligation of performance, then Vendor will make such modification within [ten (10)] business days after Vendor’s receipt of CodeHunter’s Change Order. If a Change Order does require that Vendor incur additional material costs or expenses or otherwise change Vendor’s obligation of performance, then Vendor in good faith will provide CodeHunter with a written, high level, non-binding assessment of such costs and expenses and the time required to perform the modifications required by the Change Order within [three (3)] business days following Vendor’s receipt of a Change Order. If accepted in writing by CodeHunter, such modifications in the Statement of Work will be performed under the terms of this Agreement. Vendor’s implementation of a Change Order shall not delay the performance of Services not reasonably affected by a Change Order.
Acceptance. Upon notice from Vendor to CodeHunter that any Deliverable is ready for testing, CodeHunter may, in its sole discretion, test the Deliverable to verify that it satisfies the acceptance criteria described in a Statement of Work (the “Acceptance Criteria”). Such Acceptance Criteria shall be based, at a minimum, on conformance of the Services to the Specifications. In the event the Parties fail to agree upon Acceptance Criteria, the acceptability of the Services shall be based solely on CodeHunter’s reasonable satisfaction with them. Unless otherwise set forth in the applicable SOW, CodeHunter will have [thirty (30)] days from the delivery of any Work Product (the “Acceptance Period”) to assess whether a Deliverable substantially conforms to the Acceptance Criteria. Upon completion of review and testing, CodeHunter shall promptly notify Vendor whether it has accepted the Services (“Accepts”), or whether it has identified discrepancies with the Acceptance Criteria (“Rejects”). If CodeHunter Accepts the Services, it shall issue a written “Acceptance Notice”. The date of such Acceptance Notice shall be deemed the “Acceptance Date.” If CodeHunter Rejects the Services, CodeHunter shall provide a written list of items that must be corrected (“Rejection Notice”). On receipt of CodeHunter’s Rejection Notice, Vendor shall promptly commence, at no additional charge to CodeHunter, all reasonable efforts to complete, as quickly as possible, such necessary corrections, repairs, and modifications to the Services as will permit them to be ready for retesting and review. In no event shall such corrective measures exceed [twenty (20)] days from receipt of CodeHunter’s notice. If CodeHunter determines that the Services, as revised, still do not comply in all material respects with the Acceptance Criteria, CodeHunter may either (1) afford Vendor the opportunity to repeat the correction and modification process as set forth above at no additional cost or charge to CodeHunter, or (2) depending on the nature and extent of the failure in CodeHunter’s sole judgment, terminate this Agreement. The Parties shall repeat the foregoing correction and modification procedure until the Services pass the applicable Acceptance Criteria or CodeHunter elects to terminate. In the event of a termination under this Section 4.4, Vendor shall pay to CodeHunter, within [ten (10)] business days of written notice of termination, all sums paid to Vendor by CodeHunter under this Agreement. If Vendor does not receive a Rejection Notice by the end of the Acceptance Period, the Deliverables will be deemed accepted by CodeHunter.
FEES AND PAYMENTS.
Fees and Payment. Unless otherwise specified in the applicable Statement of Work, Vendor shall render invoices monthly for Services performed for CodeHunter specifying the fees and other compensation set forth in each SOW (“Fees”). The invoices submitted to CodeHunter shall include a description of Services performed during the period; where applicable, detailed charges for each of Vendor’s personnel engaged in the performance of the Services; reimbursable expenses itemized separately; and any other information mutually agreed by CodeHunter and Vendor. CodeHunter shall pay the Fees within thirty (30) days of receipt of an invoice.
Expenses. Unless the applicable Statement of Work expressly provides otherwise or CodeHunter expressly approves in writing, Vendor will be solely responsible for all expenses incurred by Vendor or any of its employees or agents in connection with performing the Services or otherwise performing its obligations under this Agreement.
Taxes. Amounts payable for Services will not include any taxes, and Vendor will be solely responsible for all taxes, unless CodeHunter expressly agrees otherwise in writing; provided however, in no event will CodeHunter be liable for any income taxes imposed on Vendor or any other taxes or charges assessed against Vendor or associated with the operation of Vendor’s business.
OWNERSHIP AND ASSIGNMENT.
Disclosure of Work Product. In accordance with the applicable Statement of Work, including any schedule attached to it, Vendor will deliver all Deliverables and disclose all other Work Product to CodeHunter (or any person designated by CodeHunter in writing) in the form specified in the Statement of Work or otherwise designated by CodeHunter.
CodeHunter Data. CodeHunter is, and shall remain, the sole and exclusive owner of all CodeHunter Confidential Information, the CodeHunter Data, and the Intellectual Property Rights associated therewith. Unless otherwise expressly permitted in the course of Vendor’s performance of the Services, CodeHunter retains all right, title and interest in and to the CodeHunter Confidential Information, the CodeHunter Data and the Intellectual Property Rights associated therewith, and Vendor shall not acquire any license or other Intellectual Property Right or interest thereunder, whether by estoppel, by implication or otherwise. A Statement of Work may include a limited license to Vendor to use certain Intellectual Property of CodeHunter or its licensors, such as software, or know-how, as necessary to complete that Statement of Work. Any such license is only valid with respect to the SOW in which it is granted, automatically terminates upon the completion of the applicable Statement of Work, and is limited by the terms of this Agreement. Absent such a license, without CodeHunter’s approval (in its sole discretion), the CodeHunter Data will not be (a) used by Vendor, or any Vendor Personnel other than in connection with providing the Services, (b) disclosed, sold, assigned, leased or otherwise provided to third parties by Vendor, subcontractors, including in any anonymized or aggregated formats, or (c) commercially exploited by or on behalf of Vendor, or any Vendor Personnel, including in any anonymized or aggregated formats.
Deliverables. CodeHunter shall be the sole and exclusive owner of all right, title and interest in and to the Work Product. Vendor hereby irrevocably and unconditionally assigns to CodeHunter all right, title, and interest worldwide in and to the Work Product and all Intellectual Property Rights thereto, effective as of the date the applicable Work Product is created. Vendor hereby agrees that such assignment will continue to vest all the rights, title, and interest in the Work Product and all Intellectual Property rights thereto in CodeHunter, and will never lapse or cause such rights, title and interest to revert to Vendor in the event that CodeHunter does not exercise any or all of the rights, title, and interest, so assigned. Accordingly, Vendor agrees that
all Work Product shall be the sole and exclusive property of CodeHunter;
to the extent that the Work Product are not assignable, Vendor hereby unconditionally and irrevocably waives the enforcement of such rights and all claims and causes of action of any kind against CodeHunter with respect to such rights and, to the extent Vendor cannot make such a waiver, Vendor grants CodeHunter an exclusive, irrevocable, royalty-free, perpetual, fully paid-up license, with the right to sublicense through multiple levels of sublicensees, to use such Work Product for any and all legal uses; and
Vendor has no right to use the Work Product except as necessary to perform the Services for CodeHunter.
License of Vendor Intellectual Property. Vendor hereby grants to CodeHunter a non-exclusive, royalty-free, fully-paid, irrevocable, perpetual right and license, with the right to sublicense through multiple levels of sublicensees, under all of the Vendor IP and the Intellectual Property Rights associated with them to the extent they are incorporated in or otherwise used by Vendor in performance of the Services (whether or not identified or described in any SOW), to exercise all present and future rights in the Work Product. Vendor represents and warrants that it has an unqualified right to license to CodeHunter all Vendor IP.
Pre-Existing Property. Pre-Existing Property may not be used by Vendor in the performance of the Services unless such Intellectual Property has been specifically approved in writing by CodeHunter. To the extent Vendor incorporates Pre-Existing Property into any Work Product (whether or not approved by CodeHunter), Vendor unconditionally grants to CodeHunter a non-exclusive, perpetual, irrevocable, worldwide, fully-paid right and license, with the right to sublicense through multiple levels of sublicensees, under all of Vendor’s Intellectual Property Rights in any and all Pre-Existing Property used or incorporated in any Work Product or otherwise used by Vendor in performance of the Services (whether or not identified or described in any Statement of Work), (a) to reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit, and otherwise use the Work Product in any medium or format, whether now known or hereafter discovered, (b) to use, make, have made, sell, offer to sell, import, and otherwise exploit any product or service based on, embodying, incorporating, or derived from the Work Product, and (c) to exercise any and all other present or future rights in the Work Product.
Further Assurances. At CodeHunter’s request, Vendor will, and will cause its employees and agents to, (a) cooperate with and assist CodeHunter, both during and after the term of this Agreement, in perfecting, maintaining, protecting, and enforcing United States and foreign Intellectual Property Rights relating to Work Product in all countries, and (b) execute and deliver to CodeHunter any documents deemed necessary or appropriate by CodeHunter, in its discretion, to perfect, maintain, protect, or enforce CodeHunter’s rights in the Work Product or otherwise carry out the purpose of this Agreement.
CONFIDENTIALITY.
Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and shall remain the sole property of the disclosing Party or such third party.
Mutual Confidentiality Obligations. Each Party agrees as follows: (i) to use the Confidential Information only for the purposes described in this Agreement; (ii) not to reproduce the Confidential Information and to use no less than reasonable efforts to hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) to restrict access to the Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing or are otherwise bound to treat such information in accordance with the terms of this Agreement; and (iv) to return or destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement.
Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 7.1 and 7.2 shall not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing Party without restriction. Despite the previous sentence, each Party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (b) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
Non-Exclusive Equitable Remedy. Each Party acknowledges and agrees that upon any breach of this Section or any threat thereof, each Party will be entitled to seek appropriate equitable and injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either Party might have at law or equity. Any breach of this Section 7 (Confidentiality) will constitute a material breach of this Agreement and be grounds for immediate termination of this Agreement in the exclusive discretion of the non-breaching Party.
REPRESENTATIONS AND WARRANTIES.
Vendor’s Representations and Warranties. Vendor represents and warrants to CodeHunter as follows:
Authority. Vendor has the full power, capacity and authority to enter into and perform this Agreement and to make the grant of rights contained in it, including without limitation, the right to license any ancillary or third party programs licensed to CodeHunter under this Agreement. Vendor’s performance of this Agreement does not violate or conflict with any agreement to which Vendor is a party; and there is no pending or threatened litigation that would have a material adverse impact on its performance under this Agreement.
Compliance with Applicable Laws. Vendor shall comply with all applicable laws, regulations, and rules that may be in effect during the term of this Agreement as they concern the subject matter of this Agreement, securing and maintaining all appropriate visas, work permits, business licenses, and other documentation and clearances necessary for the performance of the Services.
Performance. The Services will be performed by qualified personnel and in accordance with generally accepted professional standards, practice, methods and techniques for similar services in effect at the time of such performance.
No Conflicts. Vendor will refrain from any activity, and will not enter into any agreement or make any commitment that is inconsistent or incompatible with Vendor’s obligations under this Agreement, including Vendor’s ability to perform the Services. Vendor represents and warrants that it is not subject to any contract or duty that would be breached by Vendor’s entering into or performing its obligations under this Agreement or that is otherwise inconsistent with this Agreement.
CodeHunter’s Warranty. CodeHunter represents and warrants to Vendor that, at all times during the Term, CodeHunter shall have the full power to enter into and perform this Agreement and to make the grant of rights contained herein, and CodeHunter’s performance of this Agreement shall not violate or conflict with any agreement to which CodeHunter is a party.
Disclaimer of Other Warranties. THIS IS THE FULL EXTENT OF WARRANTIES PROVIDED UNDER THIS AGREEMENT AND NEITHER PARTY MAKES ANY OTHER REPRESENTATION OR WARRANTY. THESE WARRANTIES ARE IN LIEU OF ANY OTHER EXPRESS, AND ALL IMPLIED OR STATUTORY, WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. VENDOR DOES NOT DIRECTLY OR INDIRECTLY WARRANT THE FINANCIAL SOUNDNESS, SERVICES OR PRODUCTS OF ANY THIRD PARTY VENDORS OR SERVICE PROVIDERS, EXCEPT THAT VENDOR IS RESPONSIBLE FOR THE SERVICES AND DELIVERABLES PROVIDED BY ANY OF ITS SUBCONTRACTORS UNDER THIS AGREEMENT.
LIMITATION OF LIABILITY.
LIMITATIONS. EXCEPT IN THE EVENT OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, A PARTY’S INDEMNIFICATION OBLIGATION, A BREACH BY VENDOR OF SECTION 7 (CONFIDENTIALITY), OR ANY INFRINGMENT OR MISAPPROPRIATION BY VENDOR OF CODEHUNTER’S INTELLECTUAL PROPERTY RIGHTS,IN NO EVENT SHALL EITHER PARTY BE LIABLE TO OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CAP. THE CUMULATIVE LIABILITY OF CODEHUNTER TO VENDOR FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO VENDOR BY CODEHUNTER IN THE SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE UNDER THE APPLICABLE SOW. THE LIMITATIONS OF LIABILITY IN THIS SECTION 9.2 ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
Essential Basis. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.
INDEMNIFICATION.
By Vendor. At Vendor’s expense, Vendor will indemnify, defend and hold harmless CodeHunter and its directors, officers, agents, employees, members, subsidiaries and successors in interest from and against any and all third-party claims, losses, damages, actions, liabilities or costs (including reasonable attorneys’ fees) arising out of or relating to (a) any alleged act or failure to act by Vendor or its directors, officers, agents, or employees, including, without limitation, negligent or willful misconduct, alleged to infringe the Intellectual Property Rights of a third person or cause any injury to any person or persons or damage to tangible or intangible property, (b) any breach of the provisions of Section 6 (Ownership and Assignment) or Section 7 (Confidentiality); or (c) any breach (or claim or threat of a claim that, if true, would be a breach) of any of the warranties, agreements, representations or obligations of Vendor under this Agreement (clauses (a) through (c) collectively referred to for purposes of this Section 10.1 as “Claim(s)”). In addition to the preceding sentence, indemnification by Vendor for any Claims includes the payment of all amounts that a court or arbitrator finally awards or that Vendor agrees to in settlement of any Claim(s) as well as any and all reasonable expenses or charges as they are incurred by CodeHunter or any other party indemnified under this Section 10.1 in cooperating in the defense of any Claim(s). CodeHunter shall: (A) give Vendor prompt written notice of such Claim; and (B) allow Vendor to control, and fully cooperate with Vendor in, the defense and all related negotiations, provided that Vendor will not settle any third-party claim against CodeHunter unless such settlement completely and forever releases CodeHunter from all liability with respect to such claim or unless CodeHunter consents to such settlement, and further provided that CodeHunter will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.
Indemnification by CodeHunter. CodeHunter agrees to defend, indemnify, and hold harmless Vendor and its directors, officers, agents, employees, members, subsidiaries and successors in interest from and against any third-party claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, attorneys’ fees as provided herein arising out of or relating to any gross negligence or willful misconduct by CodeHunter or its directors, officers, agents or employees that is alleged to cause any injury to any third party or such third party’s tangible property. Vendor shall: (a) give CodeHunter prompt written notice of any such claim; and (b) allow CodeHunter to control, and fully cooperate with CodeHunter in, the defense and all related negotiations.
INSURANCE. Vendor, at its sole cost and expense, shall (a) procure and maintain insurance of the types and with coverage levels adequate to protect against all risks in connection with providing the Services, including, without limitation, liability for products and services supplied by it, professional errors and omissions, death or injury to any person in the course of providing the Services, damage to property and for employee dishonesty, including, at a minimum, (i) general commercial liability/public liability insurance with (1) bodily injury limits of $1,000,000 for injury or death to any one person, and $1,000,000 for any one occurrence, and (2) property damage limits of $1,000,000 for any one occurrence, and $2,000,000 in the aggregate, (ii) umbrella liability insurance with a minimum limit of $2,000,000 per occurrence in excess of the limits stated above for employer's liability, general commercial/public liability and automobile liability coverage; and (iii) professional liability insurance in the minimum amount of $2,000,000; and (b) furnish to CodeHunter certificates of insurance or other appropriate documentation (including evidence of renewal of insurance and receipts for payments of current premiums) evidencing all coverage. Such certificates or documentation shall provide that at least thirty (30) days’ prior written notice of any policy cancellation or material change will be given to CodeHunter. Additionally, each of the insurance policies referred to in this Section 11 (Insurance) shall contain a waiver of subrogation in favor of CodeHunter and shall be considered primary and without any right of contribution by CodeHunter or any insurance effected by CodeHunter to the extent of its rights as additional insured or loss payee as the case may be.
INFORMAL DISPUTE RESOLUTION. It is the intent of the Parties that all disputes arising under this Agreement be resolved expeditiously, amicably, and at the level within each Party’s organization that is most knowledgeable about the disputed issue. Except in situations in which injunctive relief is necessary, if any dispute arises between the Parties in connection with this Agreement, the disputed matter shall be referred to the Parties’ Contract Manager for resolution. If a dispute cannot be resolved between the Contract Managers, the Parties will escalate the dispute to a designated representative with a sufficient decisional authority to solve the dispute and who does not devote substantially all of his or her time to performance under this Agreement. Such representatives will negotiate in good faith in an effort to resolve the dispute without the necessity of any formal proceeding. If the Parties’ designated representatives are unable to resolve the dispute within [fifteen (15) days] of the referral of the dispute to them, or such longer period as agreed to in writing by the Parties, each Party shall have the right to commence any legal proceeding as permitted by law.
TERMINATION.
Termination for Breach. Either Party may terminate this Agreement or any individual SOW immediately upon written notice in the event that the other Party materially breaches this Agreement or the applicable SOW and fails to cure such breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating Party) within thirty (30) days after receiving written notice thereof.
Termination of Individual SOW. In addition to each Party’s rights under Section 13.1, each Party may terminate any particular SOW according to any provision contained in it that permits such termination, provided that this Agreement shall remain in full force and effect.
Termination for Convenience. CodeHunter may terminate this Agreement in whole or in part or any Statement of Work immediately upon thirty (30) days written notice to Vendor without reason, penalty or breach of this Agreement, despite that the Vendor is in compliance with all delivery or performance requirements. In the event of any such termination, Vendor shall be compensated for any Services rendered prior to notice to Vendor, but any compensation allocated to Services that were yet to be rendered with regard to any canceled aspect of the Services shall then be eliminated. Vendor may terminate this Agreement at any time if there is no Statement of Work then in effect, effective upon thirty (30) days prior written notice to CodeHunter.
Effect of Termination. Upon any termination or expiration of this Agreement: (i) Vendor shall cease to perform the Services deliver to CodeHunter a final invoice of all Fees and expenses owed and outstanding as of such termination date within [seventy-two (72)] hours of receipt of notice of such Party’s intention to terminate; (ii) Vendor shall deliver to CodeHunter all Deliverables developed as of that time; and (iii) each Party shall return to the other Party or destroy, as instructed by such other Party, all of such other Party’s Confidential Information. Expiration or termination of this Agreement for any reason will not release either Party from any liabilities or obligations set forth in this Agreement which (i) the Parties have expressly agreed in writing will survive any such expiration or termination or (ii) remain to be performed or by their nature would be intended to be applicable following any such expiration or termination.
Survival of Obligations. Sections 1 (Definitions), 6 (Ownership and Assignment), 7 (Confidentiality), 8.1 (Vendor’s Representations and Warranties), 9 (Limitation of Liability), 10 (Indemnification), 11 (Insurance), 13.4 (Effect of Termination), 13.5 (Survival), and 14 (Miscellaneous) shall survive any termination or expiration of this Agreement.
MISCELLANEOUS.
Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.
Applicable Law. This Agreement and the rights and obligations of the Parties hereunder shall be construed in accordance with, and shall be governed by, the laws of the State of [Delaware], without giving effect to its rules regarding conflicts of laws. Each Party agrees that all causes of action between the Parties arising from or in relation to this Agreement shall be brought exclusively in the state and federal courts located in [Fairfax County, Virginia].
Force Majeure. Neither party will be liable for delay or failure to perform its obligations hereunder caused by an event of natural disaster, casualty, acts of God, riots, terrorism, governmental acts or such other event of similar nature that is beyond the reasonable control of the party (“Force Majeure Event”) provided (i) such occurrence could not have been avoided by commercially reasonable precautions and cannot be circumvented through the use of commercially reasonable alternative sources; and (ii) such party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible. If the Services cannot be completed due to a Force Majeure Event, Vendor shall provide CodeHunter with a pro-rated refund of any payments.
Notices. All notices required by or relating to this Agreement will be in writing and will be sent by means of certified mail, postage prepaid, to the Parties to the Agreement at the addresses set forth on the initial page. Notice will be effective on receipt or refusal of delivery.
Independent Contractors. The Parties acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the Parties are acting as independent contractors in making and performing this Agreement.
Amendment. No amendment to this Agreement will be valid unless such amendment is made in writing and is signed by the authorized representatives of the Parties.
Agreement Drafted By All Parties. This Agreement is the result of arm’s length negotiations between the Parties and shall be construed to have been drafted by all Parties such that any ambiguities in this Agreement shall not be construed against either Party.
Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.
Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
Non-Exclusive Remedies. Any specific remedies provided in this Agreement are non-exclusive and shall be in addition to and cumulative of any other remedies available to CodeHunter under this Agreement, at law, or in equity.
Counterparts; Headings. This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement. The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.
