CLIENT’S SUBMISSION OF A PURCHASE ORDER, PAYMENT OF ALL OR ANY PORTION OF AN INVOICE OR USE OF THE WORK PRODUCTS, INCLUDING ANY USE BY CLIENT’S PERSONNEL, CONSTITUTES CLIENT’S AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS.
This Consulting Services Agreement (“Agreement”) sets forth the terms and conditions under which Erdos Miller, Inc. (“Erdos Miller”) will perform certain consulting services for the undersigned Client.
Erdos Miller agrees to provide consulting services as described in Exhibit A attached hereto (“Work”) and to use commercially reasonable efforts to complete the Work in accordance with the schedule set forth therein. Erdos Miller agrees to notify Client if, at any time, it becomes apparent that the parties need to revise the schedule.
2. Price and Payment.
In full consideration of the consulting services provided hereunder and for any licenses granted under this Agreement, Client agrees to pay Erdos Miller the fees set forth in Exhibit A within thirty (30) days of the date of invoice.
2.1 Client agrees that any license of software or other technology as proposed in Exhibit A shall be provided exclusively under terms of a separate Software License Agreement and shall be distinct and separate from the Work Product (as defined in Section 3 below). Any license fees relating thereto set forth in Exhibit A shall be payable to Erdos Miller under such agreement without further performance by Erdos Miller regardless of the disposition of any services to be provided by Erdos Miller under this Agreement.
2.2 Client shall be responsible for all travel and living expenses incurred by Erdos Miller's staff in connection with this Agreement, if necessary. Client shall submit a purchase order to Erdos Miller valid for the term of this Agreement for all fees. Payment shall be made in U.S. dollars. All services fees and expenses payable to Erdos Miller shall be exclusive of any sales, use, value-added or similar taxes, duties, imposts, customs, levies or other withholding (“Tax”). Any such Tax shall be paid by Client in addition to fees or expenses. In the event of local tax withholding on Client payments to Erdos Miller, such payments shall be grossed-up to provide Erdos Miller the same amount after such withholding as it would have received without the imposition of such withholding, together with tax receipts or similar evidence of any withholding made by Client.
Client agrees that any and all deliverables, plans, specifications, documentation, and other materials delivered to Client hereunder, together with all ideas, concepts, know-how, techniques, inventions, discoveries or improvements, including but not limited to computer software, whether in object code or source code form, developed by Erdos Miller and arising out of or relating to the Work (collectively referred to as the “Work Product”) are the property of Erdos Miller and Erdos Miller hereby grants Client a nonexclusive, nontransferable license for internal use of the Work Product for the purposes set forth in this Agreement in accordance with Erdos Miller’s standard license terms and conditions. Erdos Miller will retain all right, title and interest in and to the Work Product, except to the extent that the Work Product contains any Client Confidential Information to which Client will retain all right, title and interest. Erdos Miller expressly reserves the right to perform similar work for other customers.
4. Force Majeure. Notwithstanding anything in this Agreement to the contrary, Erdos Miller shall not be liable for any delay or failure to perform its obligations hereunder, if the delay or failure is caused by war, terrorist attacks, pandemics, national emergencies, governmental orders, riots, civil commotion, fire, flood, earthquake or any act of God, delay by subcontractor or the failure of any third party subcontractor, or third party hardware, software, network system equipment, wiring, electrical systems or utilities, or other causes beyond Erdos Miller’s reasonable control. If any force majeure event lasts longer than thirty (30) days, Erdos Miller shall have the right to terminate this Agreement, in Erdos Miller’s sole discretion. This provision shall not be construed as relieving Client from its obligation to pay any sums due to Erdos Miller.
5. Term and Termination. This Agreement shall commence on the Effective Date below and shall continue until completion of all Work unless earlier terminated. Erdos Miller may terminate this Agreement for its convenience by providing the Client thirty (30) days prior written notice. Erdos Miller may terminate this Agreement if the Client fails to perform any of its material obligations hereunder and such failure to perform has not been cured within thirty (30) days of written notice thereof by Erdos Miller. Upon such termination by Erdos Miller, Client shall promptly pay Erdos Miller for all Work performed up to the date of termination and deliver to Erdos Miller all Work developed hereunder up to the time of termination, except that Client will not be required to deliver any Client Confidential Information. The parties' obligations under Sections 3, 7, 8, and 10 hereof shall survive expiration or termination of this Agreement regardless of the manner of termination.
6. AS IS Warranty. Unless otherwise agreed to by Erdos Miller in writing, Client acknowledges that the Work and Work Product are being provided by Erdos Miller without warranty in its current "AS IS" condition. ERDOS MILLER MAKES NO WARRANTY OF ANY KIND WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.1 Client Responsibilities. Client is solely responsible for the use to which it puts any deliverable, Work Product or information provided by Erdos Miller hereunder and any decisions it makes in using such deliverable, Work Product or information. Client shall be solely responsible for the use of any Erdos Miller product or related maintenance, support or service. Client represents and warrants that it has all right and authority from any third-party suppliers to allow Erdos Miller to perform the Work hereunder and shall defend, indemnify, and hold harmless Erdos Miller from any claims or damages incurred relating thereto.
7. DAMAGES. IN NO EVENT SHALL ERDOS MILLER BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, SUCH AS, BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS OR OTHER ECONOMIC LOSS IN CONNECTION WITH OR ARISING OUT OF THE WORK. ERDOS MILLER’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL DAMAGES SHALL NOT EXCEED THE TOTAL AMOUNTS PAID BY CLIENT.
8.1 Confidential Information. "Confidential Information" means all information provided by Erdos Miller to the Client relating to the Work which Erdos Miller has identified as being proprietary or confidential.
8.2 Nondisclosure. The Client shall protect as proprietary and confidential all Confidential Information disclosed to the Client under this Agreement using at least as great a degree of care as used to maintain the confidentiality of its own most Confidential Information, but in no event less than a reasonable degree of care. Except with specific prior written authorization, the Client shall not use, either directly or indirectly, any of Erdos Miller’s Confidential Information other than for the purpose for which it has been disclosed in connection with the performance of the Work. The Client agrees that it will disclose Erdos Miller’s Confidential Information only to its employees who need to know such information, provided that such employees are bound by terms and conditions protecting such Confidential Information substantially similar to those of this Agreement. This paragraph shall survive the expiration or termination of this Agreement for a period of ten (10) years.
9 No Assignment. Client shall not assign this Agreement without the prior written consent of the other party, which will not be unreasonably withheld. Any transfer by merger, consolidation or liquidation shall constitute an assignment or purposes of this Agreement.
10 Export Assurance. Any and all reports, computer software or technologies to be delivered in connection with the Work and any technical data incorporated therein (“Deliverables”) shall be exported outside the United States only in compliance with all applicable United States export control laws. Client will not directly or indirectly use or re-export such Deliverables in any manner contrary to U.S. export laws and regulations, including but not limited to use in nuclear, chemical/biological warfare and/or missile activities. Client also agrees that it will not, without first procuring a BXA license or License Exception, (a) re-export or release any Deliverable to a national of a country in Country Code D:1 or E:2; nor (b) export to Country Groups D:1 or E:2 the direct product of a Deliverable, if such foreign produced product is subject to national security controls as identified on the Commerce Control List (See General Prohibition Three Sec. 736.2(b)(3) of the Export Administration Regulations).
11. Non-Solicitation. Client agrees that, during the term of this Agreement and for a period of one (1) year thereafter, Client will not, except with Erdos Miller's prior written approval, hire, solicit or offer employment, directly or indirectly, to any Erdos Miller employee or staff.
12.Amendment; Waiver. Neither this Agreement nor any term, covenant, condition or other provision hereof may be changed, waived, discharged or terminated orally but only by an instrument in writing signed by the party against which enforcement of the change, waiver, discharge or termination is sought. Except as otherwise provided, failure or delay of either party to exercise any right or remedy hereunder shall not constitute a waiver of rights or remedies under this Agreement.
13 Governing Law. This Agreement shall be construed according to the laws of the State of Texas, without regard to its conflicts of laws provisions. Client hereby agrees to submit to the non-exclusive jurisdiction of the state and federal courts Harris County, Texas.
14. Entire Agreement. This Agreement shall constitute the entire agreement between the parties hereto with respect to its subject matter; and, except as otherwise expressly provided herein, this Agreement shall not be affected by reference to any other document. Variance from, or additions to, the terms and conditions of this Agreement in any purchase order or other written notification from Client shall be of no effect. In the event of any conflict between this Agreement and Exhibit A, this Agreement shall control.
15. Modifications. Erdos Miller reserves the right to change the terms and conditions of this Agreement at any time. Updated versions of the terms and conditions of this Agreement will appear on this web site and are effective immediately. Client is responsible for regularly reviewing the terms of thi Agreement. Continued use of the Work or Work Products after any such changes constitutes Client’s consent to such changes.
16. Severability. If any provision of this Agreement is held unenforceable or inoperative by any court of competent jurisdiction, either in whole or in part, the remaining provisions shall be given full force and effect to the extent not inconsistent with the original terms of this Agreement.
17. Notices. Notices and communications required by this Agreement shall be in writing and may be delivered in person, by courier, transmitted by facsimile, or mailed prepaid first class, return receipt required, to the respective parties at the address listed herein or other address most recently designated in writing. Notices directed to Erdos Miller shall be sent "Attention: Legal Department".