Published: July 11, 2023
THIS MASTER PRODUCT AND SERVICES AGREEMENT is made and entered into by and between Continuant, Inc. (Continuant), a Washington Corporation, with offices located at 5050 20th Street East, Fife, Washington and their Customer. Continuant and Customer are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
The Parties hereby agree as follows:
1. SERVICES: During the term of this Agreement, Continuant will perform certain services for Customer that may include, but not be limited to, maintenance, technical support, monitoring (collectively the“Managed Services” or “Coverage”) and design, equipment and software sales and installation, if applicable, (collectively the “Solution(s)”). Services are defined as any work product produced directly by Continuant including Managed Services, Coverage, and Solutions and does not include work product produced or controlled by others contributing to a project.
The description of the Services, applicable fees, terms and conditions will be confirmed by execution of a Statement of Work (“SOW”) mutually agreed upon by the Parties. Upon execution by both Parties, each SOW will become a part of and subject to this Agreement. Changes in the scope being performed under any SOW will be made only in writing executed by authorized representatives of both Parties. Any request for Services made by the Customer that is not specifically stated in the applicable SOW will be considered out of scope and may require a change order document. If there is any ambiguity between this Agreement and a SOW, the SOW shall govern.
2. TERM: The Term of this Agreement shall be effective once signed by the Customer and remain in effect until terminated as stated herein.
3. TITLE & SECURITY INTEREST: Customer assumes full responsibility for, and all risk of loss to, any equipment purchased by Customer upon Customer’s written acceptance of delivery to Customer’s premises. All right, title, and interest in and to the equipment shall transfer to Customer upon payment in full of the purchase price. If any part of the balance due remains outstanding, title to the equipment shall remain in Continuant until paid in full by Customer.
Continuant may place equipment or critical spare parts (“Continuant Equipment”) at Customer’s sites in order to perform Services, meet Service Level Objectives, and/or to establish remote access. This Continuant Equipment will remain the sole and exclusive property of Continuant. Customer agrees to assume all risk of loss and to be liable for any damage to the Continuant Equipment from the date of receipt until its return to Continuant. Failure to return the Continuant Equipment in the same condition as it was received will result in a payment to Continuant for Continuant’s then current rates for Continuant Equipment. Return charges may be invoiced to Customer at Continuant’s sole and absolute discretion.
Proprietary and Confidential
4. COPYRIGHTS AND LICENSES: The Customer agrees that drawings, documents, written communications, electronic messages, specifications, and other materials furnished by Continuant during execution of Services are instruments of service (“Instrument(s) of Service”). Continuant is the owner of these Instruments of Service. Permission to use these Instruments of Service is given by a signed SOW(s)provided that the Customer has remitted in a timely manner all payments according to the applicable SOW(s). If either Party terminates the applicable SOW(s) before all services and deliverables have been provided, Customer agrees that in each Instrument of Service belongs to Continuant and that all permissions and licenses to use Instruments of Service are removed.
5. PERFORMANCE: Continuant affirms Services will be performed (a) free from defects in material, workmanship and design; and (b) conform to all applicable specifications, drawings, samples and descriptions for one (1) year after date of installation. Continuant will not be responsible for delays or non-performance caused by; (a) Customer’s network readiness; (b) Customer supplied equipment; or, (c)system or equipment designs by a 3rd party.
6. INVOICING AND PAYMENT: Continuant shall be paid the amounts determined in the applicable SOWand the pricing terms and currency set forth in the applicable SOW(s). Continuant shall invoice Solution(s)as stated in the applicable SOW/Quote or if applicable an assigned Project Manager will provide a detailed billing plan at or before the kick-off meeting (“Billing Plan”). Such payments are due to Continuant within thirty (30) days from the date of Continuant’s invoice unless otherwise stated in the applicable SOW(s). Customer is prohibited from offsetting any monies owed to Continuant under this Agreement for any reason including, without limitation, refunds and performance.
Payments for Coverage along with applicable sales and/or use taxes are due in advance of Service prior tot he applicable period’s Coverage start date. Coverage will be invoiced with a Coverage billing period beginning on the first (1st) day of the month (the “Billing Date”). In the event of a difference between the Commencement Date and the Billing Date, the difference will be billed on the final invoice on a pro-rata basis. Coverage is billed using thirty (30) day monthly cycles. Any discounts/credits issued by Continuant to Customer will expire upon contract termination. In the event a credit is issued by Continuant, Customer must redeem the credit within six (6) months of the credit issue date.
Continuant shall invoice all Solution(s) based on the completion of specific milestones. An assigned Project Manager will provide a detailed plan outlining the payment process (“Billing Plan”) at or before the kick-off meeting. An initial deposit may be required. Monthly carrier utility and/or usage fees are due upon receipt of invoice.
Unless expressly stated elsewhere in this Agreement, all amounts of money specified in this Agreement are in U.S. Dollars.
Proprietary and Confidential Customer’s past due unpaid and undisputed balance will be considered delinquent and subject to a late payment fee equal to twenty-five dollars ($25) per month or one percent (1%) per month, whichever is greater. Customer will pay all 3rd party costs associated with a means of payment or invoicing or Customer requested audits, surveys, or evaluations. A handling fee may be charged for special billing and invoicing requests. For timely billing, Customer address changes must be submitted to Continuant with sixty (60) days’ advance written notice.
If the Consumer Price Index, All Urban Consumers (“CPI-U”), published by the U.S. Department of Labor, increases by more than five percent (5%) in the previous calendar year, then Continuant may raiseCustomer’s Coverage rate by the CPI-U percentage of increase. Continuant will give Customer ninety (90) days’ written notice of the pending rate increase. Once in receipt of notice, Customer will have thirty (30)days to cancel the affected Coverage without the payment of cancellation fees by providing Continuant with sixty (60) days’ written notice.
7. TAXES: Customer will be billed for all actual sales, use and excise taxes, as well as all regulatory surcharges, customs, VAT, and duties assessed from any domestic or international jurisdiction due or payable upon the provision, sale or use of Services under this Agreement (“Taxes”). In some cases, Continuant will charge these taxes on invoices and remit on your behalf, if not it is the full responsibility of the Customer to remit the use tax as appropriate for all state and local jurisdictions in which they reside. Customer may be required to act as an importer for applicable locations to receive Customer requested equipment which will allow Customer to recover VAT at their sole expense and discretion. Customer shall pay all Taxes due by Customer to Continuant under this Agreement, unless Customer has furnished Continuant with a valid tax exemption certificate with respect thereto. Customer is the “Importer of Record” for all countries outside of United States and is responsible for all customs, duties, and VAT fees. IfContinuant is acting as the Importer of Record” in any country outside of the United States any fees incurred will be invoiced to the Customer at the time of delivery.
8. TERMINATION: Either Party may terminate this Agreement, in whole or in part, as stated in the applicable SOW(s). Customer shall be responsible for payment of equipment purchased or Services provided up to the point of termination and any applicable cancel fees unless otherwise stated in the applicable SOW(s). The purchase of software licenses and 3rd party provided services may not be canceled and are non-refundable.
9. INDEMNITY: Each Party (at its own expense) will defend the other Party, its affiliates, employees, directors, and officers against, or settle at its own expense, any 3rd party claims, suits, actions or proceedings asserted against such Party, its Affiliates, employees, directors, and officers (collectively the“Indemnified Party”) arising out of or relating to bodily injury to or death of any person, or loss of or damage to real or tangible personal property, to the extent that such claim, suit, damage, or expense was proximately caused by any negligent or intentional act or omission on the part of the Party from whom indemnity is sought, and/or its agents or employees (“Indemnifying Party”).
Proprietary and ConfidentialCustomer will further indemnify, defend and hold harmless Continuant, Continuant’s affiliates, and the irrespective officers, directors, employees, agents and representatives as Indemnified Parties from and against all 3rd party claims, damages, assessments, proceedings, actions, suits, costs, expenses, losses and other liabilities of any kind or nature including, without limitation, reasonable attorneys’ fees, to the extent the claim or claims arise out of, in connection with, or relate to allegations concerning Continuant’s violation of any manufacturer contract entered into by Customer or Customer’s failure to comply with Kari’sLaw Act of 2017 and Section 506 of Ray Baum’s Act. The Indemnifying Party will defend, indemnify and hold harmless the Indemnified Party from and against any and all finally awarded damages, costs and expenses, including costs of investigation, court costs, and reasonable outside attorneys’ fees in connection with the indemnified claim. 10. EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITY: The entire liability of Continuant, its subsidiaries, affiliates, and subcontractors (and the directors, officers, employees, agents, representatives, subcontractors, and supplier of all of them), and Customer’s exclusive remedies for any damages arising from the performance or non-performance of any work or service, regardless of the form of action, whether in contract, tort including negligence, strict liability or otherwise shall be: (1) for Continuant’s failure to perform any material term of this Agreement (e.g., Continuant’s Coverage obligations), Customer’s sole remedy shall be to cancel this Agreement without incurring cancellation charges if Continuant fails to correct such failures within thirty (30) days of receiving Customer’s written notice; (2) for damages to real or tangible personal property for which Continuant’s sole gross negligence was the proximate cause,Customer’s remedy shall be the right to proven damages to property or person, not to exceed the current year’s total contract value. Neither Party shall be liable for indirect or incidental damages, or special or consequential damages, including but not limited to: lost profits, savings or revenues of any kind. Continuant is not responsible for lost, corrupted, misdirected or misappropriated data or messages. Continuant is also not responsible for charges for common carrier telecommunication services or facilities accessed through or connected to covered equipment. Neither Party shall be liable for the types of damages enumerated above, whether the other Party has been advised of the possibility of such damages. This paragraph shall survive the failure of any exclusive remedy.
11. FORCE MAJEURE: Neither Party shall be liable for any failure to perform its obligations under this Agreement if prevented from doing so by a cause or causes including acts of God, or the public enemy, fires, floods, storms, earthquakes, riots, strikes, lockouts, wars or war operations, restraints of government or other cause or causes which could not with reasonable diligence be controlled or prevented by the Party.
12. CUSTOMER DEFAULT: Customer will be in default of Customer’s obligations under the Agreement if Customer breaches the material terms that follow (collectively the “Material Terms”) including, but not limited to: (1) Customer failure to make payment by the Due Date; and (2) Customer failure to perform Customer non-monetary obligations. If Customer fails to perform any Material Term or condition of this Agreement,
Proprietary and ConfidentialContinuant shall notify Customer of the breach in writing, and Customer has thirty (30) days to cure the breach. If Customer’s breach is not cured in thirty (30) days, Customer will be in final default and Continuant may cancel this Agreement immediately and exercise any available rights. The cure provision of this Article does not apply should Customer become insolvent, make an assignment for the benefit of creditors or file for bankruptcy, in which case Continuant may immediately terminate this Agreement. Upon Customer default, Continuant may exercise any or all of the following non-exclusive remedies: (1) Bill cancellation charges as outlined in the Agreement along with any other applicable charges; (2) Suspend Services and/or terminate performance; (3) Repossess equipment provided byContinuant and not paid for by Customer; (4) Suspend and/or terminate licenses not paid for by Customer;(5) Revoke Customer credit; and (6) Offset monies due Customer.
13. DISPUTE RESOLUTION: If either Party initiates litigation, then the prevailing Party shall be entitled to an award of 3rd party collection fees, reasonable attorneys’ fees and expenses of litigation (arbitration), including without limitation the reasonable fees of expert witnesses. The Parties waive trial by jury.
14. GOVERNING LAW: This Agreement will be governed in all respects by, and construed and enforced in accordance with, the laws of the State of Washington without regard to any rules governing conflicts of laws. To resolve all disputes related to or arising from the Agreement (the “Disputes”), the Parties consent to the exclusive jurisdiction over and venue in the state and federal courts of Pierce County, Washington.
15. COMPLIANCE WITH LAWS: The Parties agree to comply with all applicable local, state, federal, and international laws, rules, regulations, policies and orders. Customer shall procure all necessary licenses, permits, and pay all fees and other required charges and shall comply with all guidelines and directives required by law to pay any applicable governmental authority. To the extent that the Transfer of Undertakings (Protection of Employment) Regulations 2006 or any other relevant laws apply, such thatContinuant or a replacement supplier incurs Employment Liabilities arising in relation to any personnel whose employment (or any claim arising out of such employment, or arising as a result of its termination)transfers to Continuant or to a replacement supplier, Customer agrees to indemnify and hold Continuant and any replacement supplier harmless from and against all such Employment Liabilities. For the purposes hereof, "Employment Liabilities" means any costs, claims, demands, fines, or expenses (including reasonable legal and other professional expenses) and all losses, damages, compensation and other liabilities, including those incurred by, or attributed to, Continuant, any replacement supplier, or subcontractor of Continuant.
16. NON-SOLICITATION: Neither Party will knowingly solicit the hiring of nor hire the other Party’s employees, as employees, agents, or independent contractors or consultants, during the term of this Agreement and for two (2) years after the expiration of the term. If violated, the violating Party is liable to
Proprietary and Confidential the non-violating Party in the amount of Fifty Thousand U.S. Dollars ($50,000.00), as a non-exclusive remedy.
17. CONFIDENTIALITY: Both Parties consider all data, knowledge and other information regarding each other’s business operations and/or programs, agreements, rates, (collectively the “Information”), which is submitted or transferred to either Party to be confidential, proprietary, and/or trade secret. Both Parties agree to take every reasonable precaution to safeguard and treat the Information as such, and further agrees that it will not disclose or publish or reveal (collectively, “Disclosure”) any of the Information received from either Party except with specific prior written consent. Both Parties agree to return all such information to the other Party upon request.
18. ASSIGNMENT: This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their respective successors and assignees.
19. SEVERABILITY: In the event that any provision of this Agreement is held to be illegal, invalid or unenforceable, such provision shall be deemed to be separate from all of the other provisions hereof and all of such other provisions shall remain in full force and effect as if such illegal, invalid or unenforceable provision were not a part hereof.
20. WAIVER: The delay or failure of any Party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of such term or any other term of this Agreement, nor deprive that Party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement in whole or in part.
21. SUBCONTRACTING: Continuant may subcontract work to be performed under this Agreement. Customer is responsible for any delays caused by its own vendors. Any additional costs incurred byContinuant as a result of delays caused by Customer’s vendor will be charged on a time plus material basis.
22. SURVIVAL: ARTICLES 3, 6, 7, 10, 12, 14, and 16 shall survive cancellation of this Agreement.
23. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matters contained herein, and supersedes and replaces all prior agreements or understandings, whether oral or written, between them with respect to such matters.