IMPORTANT: The following terms and conditions apply between the parties with respect to the products and services provided by Noble Technologies Corp. (“NobleTek”), and supersede all prior written or oral proposals, documents, communications and agreements. The terms and conditions herein will supersede all terms and conditions submitted by Client, including, but not limited to, any terms on purchase orders or other similar documents. Any modifications or amendments to these terms and conditions must be in writing and signed by both parties. NobleTek’s proposal is expressly limited to and conditioned upon acceptance of all of the terms and conditions herein.
Confidentiality & Proprietary Information
The parties agree that certain proprietary designs, specifications, processes, diagrams, computer programs, technical reports, product plans and documentation, whether tangible, intangible, written, machine readable or in other form (collectively "Confidential Information") which may be furnished by either party (hereinafter called "Disclosing Party") in writing to the other party (hereinafter called "Receiving Party") in contemplation of or in performance hereunder shall remain the property of the Disclosing Party. In the event the Receiving Party receives any such Confidential Information identified as proprietary at the time of disclosure, it shall not be disclosed to any third party without the Disclosing Party's prior written approval. This section shall impose no obligation upon the Receiving Party with respect to any information: (i) not marked or identified by the Disclosing Party as proprietary at the time disclosed to the Receiving Party; (ii) in the public domain other than by breach of the Receiving Party's obligations hereunder; (iii) known to the Receiving Party prior to receipt from the Disclosing Party; (iv) received by the Receiving Party from a third party without restrictions if such third party has the right to make such disclosure; (v) independently developed by the Receiving Party as evidenced by its books and records; (vi) disclosed by the Disclosing Party to a third party without similar restrictions; or (vii) disclosed pursuant to an order of a court or government authority of competent jurisdiction. Prior to disclosing Confidential Information pursuant to subsection (vii) above, the Receiving Party shall make reasonable and timely efforts to notify the Disclosing Party of such order to afford the Disclosing Party an opportunity to seek a court order limiting such disclosure.
The work proposed herein will require the use of NobleTek’s technical data (including without limitation specifications, formulae, processes and/or computer software) developed at private expense and protected by copyright or other intellectual property right or considered a trade secret by NobleTek or third parties ("Preexisting Works"). Such use or reference shall not constitute or imply a grant of a license, a transfer of any title or right, or any other right to use such Preexisting Works. Any provisions of this proposal granting to Client (or Client’s customer) any rights whatsoever in Preexisting Works shall apply only to data or software specifically listed in this proposal as deliverable(s) and shall not apply to NobleTek’s Preexisting Works used to develop deliverable(s) or referenced in such deliverable(s). NobleTek further agrees that a limited license to use any NobleTek Preexisting Works will be provided to Client, only to the extent such NobleTek Preexisting Works are identified as a deliverable(s).
All right, title and interest in any Preexisting Works and in any modifications, enhancements or derivatives thereto developed in the performance of this Agreement are and shall remain in NobleTek and its licensors. All right, title and interest in any data, specifications, systems documentation and code provided by Client (“Client Information”) are and shall remain in Client. All right, title and interest in any third party proprietary data or code shall remain with those third parties, except that the Disclosing Party, to the extent that it is able to do so, grants the other party a limited license to use such proprietary information under this Agreement.
Preexisting Works shall be identified in the Statement(s) of Work. The Statement of Work for each project shall make a clear distinction between deliverables to be treated as Works for Hire, with title transferred to Client, and Preexisting Works, with title remaining in NobleTek and its licensors.
NobleTek warrants that all services provided pursuant to this Agreement will be performed in accordance with the general standards of the industry.
THE EXPRESS WARRANTY IN THIS SECTION IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. NOBLETEK MAKES NO OTHER WARRANTIES OF ANY KIND, WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, OR SERVICES PROVIDED UNDER THIS AGREEMENT. NOBLETEK FURTHER EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT (OTHER THAN PROVIDING THE LIMITED INFRINGEMENT INDEMNITY SET FORTH BELOW). NOBLETEK MAKES NO WARRANTY THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR SPECIAL DAMAGES (INCLUDING LOST DATA OR LOST PROFITS OR REVENUES) ARISING FROM OR RELATED TO THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR CLAIM.
NOBLETEK ENDEAVORS TO VERIFY THE ACCURACY OF THE ENGINEERING SOLUTIONS IT PROVIDES TO ITS CUSTOMERS. HOWEVER, NOBLETEK DOES NOT HAVE ACCESS TO ALL INFORMATION REGARDING THE DESIGN AND APPLICATION OF ITS CUSTOMERS’ PRODUCTS AND HAS NO CONTROL OVER THE USE OF THESE PRODUCTS.
NOBLETEK’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL IN NO EVENT EXCEED THE AMOUNT OF THE QUOTED PRICE OR PURCHASE ORDER, WHICHEVER IS LESS.
CLIENT ACKNOWLEDGES THAT THE FEES CHARGED BY NOBLETEK REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT, AND THAT NOBLETEK WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.
NobleTek shall indemnify and hold the Client harmless with respect to any claim made against the Client that the information, data or documentation (collectively “Information”) provided hereunder infringes a United States copyright or patent, or upon the legally protected proprietary rights of others. In the event that the Information or any portion thereof is held or alleged to constitute an infringement, NobleTek, at its option, shall: (i) modify the allegedly infringing portion of the Information without impairing in any material respect the functionality or performance, so that it is non-infringing; (ii) procure for Client at NobleTek’s expense the right to continue to use the allegedly infringing Information; or (iii) replace the allegedly infringing Information or portions thereof with equally suitable, non-infringing Information. If none of the foregoing can be achieved as a practical business matter, NobleTek shall have the right to terminate its agreement(s) with Client and refund all amounts paid that were related to the allegedly infringing Information. NobleTek shall have no liability for any claim of infringement based on: (i) use or combination of any portion of the Information with any products or software not supplied by NobleTek, if such infringement would not have occurred without such use or combination; (ii) use of the Information by Client, after having received notice from NobleTek that the Information infringes the proprietary rights of a third party, and NobleTek has performed one of the curative options referred to herein; or (iii) use of other than the latest unmodified version of the Information provided to Client by NobleTek, if the infringement would have been avoided by the use of such version.
Client agrees to indemnify and hold NobleTek harmless from and against any and all claims of any kind, including, but not limited to, any claims arising from or in any way related to personal injury or death to persons or damage to property arising out of, resulting from, or in connection with results Client has obtained through the negligent use or misuse of the information, data or documentation, except for claims or causes of action resulting from NobleTek’s gross negligence or willful misconduct
The indemnities provided by either party in this Agreement are conditioned on the party receiving the claim (“Indemnified Party”): (i) giving the other party (“Indemnifying Party”) prompt written notice of such claim; (ii) permitting the Indemnifying Party to defend or settle the claim; (iii) not at any time admitting liability in respect of the whole or any part of the claim, or agreeing to settle or dispose of the claim; and (iv) providing all reasonable assistance to the Indemnifying Party in defending or settling the claim. This section states the entire liability of the Indemnifying Party and the further states the Indemnified Party’s sole and exclusive remedies for the covered claims.
Neither party shall solicit for hire or hire, or cause to be solicited for hire or hired, any employee of the other party during the term of the Agreement and for a period of one year after the termination thereof.
Payment Terms and Policies
Unless otherwise noted and agreed upon by NobleTek and the Client, terms for invoices are NET 30 from the invoice date.
Interest of 1.5% can be charged monthly for any late and/or non-payments, 18% per annum or the maximum rate permitted by applicable law.
Payment arrangements, if needed can be made, but only if it is communicated within the first 15 days of receiving the invoice, in which interest for late payment can be waived. Notification on the invoice due date does not constitute ample notification and at least the first month after the due date is subject to the 1.5% interest, any future months can be waived.
Failure to make payments on time, within an agreed upon payment arrangement, will cause the Client account to be considered delinquent and interest at 1.5% will be charged retroactive back to the original due date.
NobleTek reserves the right to stop all services being performed or initiate "Termination of Support" (TOS) for software customers, following the rules and regulations set for by Dassault Systemes in their TOS process, for any account which reaches 60 days past due and the Client has not attempted to make payment on the account or communicated to NobleTek extended payment terms are needed.
No new work will be performed for a Client having an outstanding balance of 60 days or more past due. Work can begin once payment is received in full by NobleTek for any outstanding past due balance.
Failure from a Client to communicate rework issues, within the time frame allotted in the statement of work, or 15 working days after delivery, whichever is greater, constitutes automatic agreement from the Client for the above payment terms. In such cases, NobleTek reserves the right to complete rework after payment is received.
Neither party will be in default of this Agreement or be liable for any delay or failure in performance resulting directly or indirectly from any cause beyond its reasonable control; provided, however, that either party who fails because of force majeure to perform its obligations hereunder will, upon the cessation of the force majeure, take reasonable steps to resume compliance under the Agreement with the least practicable delay.
This Agreement will be construed and disputes hereunder will be settled under the laws of the State of Ohio, The United States of America.