Terms and Conditions 2018-02

TERMS & CONDITIONS

1. Purchase & Payment

1.1 Term. These Terms and Conditions will be valid for a period of thirty-six (36) months from the date of acceptance of the agreement (i.e. the “Agreement Period”).

1.2 Letter of Agreement. Each Letter of Agreement or Statement of Work shall be subject to these Terms unless otherwise agreed in writing, and will contain: (i) an explanation of the service(s) purchased by Client from PreScouter, (ii) the Fees for the service(s), & (iii) any additional provisions specific to the specific service engagement.

1.3 During the Agreement Period, Client may request to purchase additional services at which point a new Letter of Agreement specific to the new service engagement will be submitted.

1.4 Invoicing Terms. Upon execution of the Letter of Agreement, PreScouter will deliver an invoice to Client for the full amount of the Fees and such invoice shall be due and owing by Client within thirty (30) days of receipt. If any portion of an invoice is disputed, Client will pay the undisputed amounts, and the parties will reconcile the disputed amount in good faith as soon as possible.

1.5 Late payments. In the event that the Fees are not paid in full within the time limits specified in the Letter of Agreement, the Client shall pay to PreScouter a fixed late fee of $250 (“Penalty Fee”) for each week that the payment is late, in addition to the sums outstanding. This Penalty Fee shall be incurred starting on day seven (7) after the invoice’s Due Date. Additional Penalty Fees of $250 shall be incurred every seven (7) days until the invoice amount and any previously incurred Penalty Fees are paid in full.

1.6 Client may make payments via ACH deposit, check or credit card. Client shall be responsible for paying any fees related to funds transfer. Credit card payments are subject to an additional 3.5% surcharge that the Client agrees to pay.

1.7 In the event that the Client fails to pay the Fee and any Penalty Fees, or any additional fees, if requested, PreScouter reserves the right to terminate this Agreement at any time and without notice.

2. Confidential Information

2.1 “Confidential Information” means all information, in whatever form, furnished by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) orally or in writing and identified as confidential or proprietary at the time of disclosure, or that by its nature should reasonably be assumed to be confidential or proprietary, including, but not limited to: business information; financial information; marketing techniques and materials; business plans and strategies; business operation and systems; pricing policies; information concerning employees, customers, and/or vendors; discoveries; improvements; research; development; know-how; designs; products and services; opportunities; methods and procedures; and equipment, physical materials and manufacturing processes. PreScouter Property and PreScouter Intellectual Property Rights are expressly considered Confidential Information.

2.2 Each party agrees not to use and/or disclose Confidential Information received from the other party regarding each other’s processes and procedures except as allowed under these Terms.

2.3 Each party will not disclose Confidential Information to any third party, other than to its directors,
officers, and employees under a duty of confidentiality, without the other party’s prior written consent. Each party shall maintain the Confidential Information of the other party in confidence using at least the same degree of care as it employs in maintaining in confidence its own proprietary and confidential information, but in no event less than a reasonable degree of care. PreScouter shall be allowed to disclose Confidential Information to its Affiliates, consultants, vendors or subcontractors who are necessary to provide services to Client, provided that any such Affiliates, consultants, vendors or subcontractors are bound by confidentiality obligations at least as restrictive as those contained in these Terms

2.4 The confidentiality obligations of each party shall continue in force and survive the termination or expiration of the applicable Agreement Period for a period of three (3) years following such termination or expiration. The confidentiality obligations with respect to any Confidential Information subject to trade secret protection will continue indefinitely.

2.5 The Disclosing Party grants no license under any copyright, patent, trademark or trade secret by the disclosure of the Confidential Information. The parties understand and acknowledge that any and all Confidential Information is being provided by the Disclosing Party without any representation or warranty, express or implied, as to the accuracy or completeness of such Confidential Information.

2.6 Confidential Information shall not include information which (i) was already known by the Receiving Party at the time of the disclosure by the Disclosing Party, (ii) shall have otherwise become publicly available other than as a result of disclosure by the Receiving Party in breach of these Terms, (iii) was disclosed to the Receiving Party on a non-confidential basis from a third party source other than the Disclosing Party, which the Receiving Party reasonably believes is not prohibited from disclosing such information as a result of an obligation in favor of the Disclosing Party, (iv) is developed by the Receiving Party independently of any disclosure of such information made by the Disclosing Party, or (v) is required to be disclosed by order of a court of competent jurisdiction, or by subpoena, summons or any other legal process, or by applicable professional standards; provided that, in the event that the Receiving Party is ordered by a court of competent jurisdiction, administrative agency or governmental body to disclose any Confidential Information, the Receiving Party shall (a) so long as legally permissible, promptly notify the Disclosing Party of such order and (b) at the written request of the Disclosing Party, diligently contest such order at the sole expense of the Disclosing Party as expenses occur.

3. Intellectual Property

3.1 “Intellectual Property Rights” means all patents (including all reissues, divisions, continuations, and extensions thereof) and patent applications, trade names, trademarks, service marks, logos, trade dress, copyrights, trade secrets, mask works, rights in technology, know-how, rights in content (including performance and synchronization rights), unregistered design, or other intellectual property rights that are in each case protected under the laws of any governmental authority, whether or not registered, and all applications, renewals and extensions of the same.

3.2 “Client Property” means any data, information, or other material provided by or on behalf of Client to PreScouter; provided, however, Client Property shall not include any PreScouter Property or PreScouter Intellectual Property Rights.

3.3 “PreScouter Property” means all of the following without limitation created or owned by PreScouter or its Affiliates, or its licensors, whether pre-existing or independently created during the Subscription Period: all Materials, websites, software, tools, URLs and links, databases, designs, algorithms, user interface designs, architecture, class libraries, objects and documentation, network-design, know how, technology and source code and all portions, subsets or derivatives thereof, any improvements, modifications, upgrades or other changes thereto; and any and all derivative works created by PreScouter or its Affiliates.

3.4 The Client shall obtain and maintain all Intellectual Property Rights in and to the Customized Report that represents the final deliverable for each Project. Client shall be granted an exclusive, perpetual, irrevocable, royalty-free, fully-paid, worldwide license to use the Customized Report. PreScouter and its licensors shall remain the sole and exclusive owner of all equipment, software, processes, and the like used in connection with fulfilling the SOW and generating the Customized Report.

3.5 PreScouter will retain all Intellectual Property Rights (i) in and to the PreScouter Property or (ii) otherwise owned by or licensed to PreScouter or its Affiliates by their respective licensors.

3.6 PreScouter shall have the right to use any and all public information, including information gained
through interviews with subjects of investigations, used to generate the Customized Report.

3.7 PreScouter shall take all necessary and appropriate action to insure that the Customized Report or any other items which it shall prepare or which it shall have prepared pursuant to this Agreement or any Letter of Agreement or Statement of Work shall not violate or infringe upon any patent, trademark or copyright, or any other right of any person, corporation, or other entity.

4. Indemnification

4.1 Client shall indemnify and hold PreScouter, and its Affiliates, successors, officers, directors, and employees and PreScouter shall indemnify and hold Client, and its Affiliates, successors, officers, directors, and employees, harmless from any Loss for personal injury, including death, at any time resulting therefore, or for damage to property arising out of or in connection with the performance or breach of this Agreement no matter how such Loss arises, whether by acts or omissions, except to the extent such Loss is due solely to PreScouter’s or Client’s negligence.

5. Limitation of Liability

5.1 Each party’s aggregate liability arising out of, or relating to, this Agreement (whether in contract or tort or other legal theory) shall not exceed the amount of Fees paid by Client to PreScouter pursuant to this Agreement. In no event shall either party be liable to to the other, for any special, consequential, punitive or other indirect damages (including, but not limited to, lost revenues or profits), whether or not notified of such damages. This paragraph shall survive termination or expiration of this Agreement.

6. Non-Solicitation

6.1 Client acknowledges that PreScouter will introduce Client to the Project Architects and Advanced Degree Researcher(s) delivering the services referenced herein, and that PreScouter is the sole source of introduction to the Project Architects and Advanced Degree Researcher(s). Furthermore, Client understands and acknowledges that PreScouter has expended substantial costs and considerable time and effort in locating, interviewing, hiring and subsequently introducing the Project Architects and Advanced Degree Researcher(s) to Client. Client acknowledges that the Project Architects and Advanced Degree Researcher(s) working with Client on behalf of PreScouter is(are) contractually obligated to PreScouter pursuant to a contractual agreement that expressly prohibits the Project Architects and Advanced Degree Researcher(s) from directly or indirectly soliciting or accepting employment in any capacity, including but not limited to direct employment, employment as an independent contractor, employment as a consultant, employment through a temporary or permanent employment agency, with Client, or any affiliate of Client, during the term of their contract and for a period of twelve (12) months following the termination or expiration of that contract. Notwithstanding the foregoing sentence, any such employment may be permitted under both the Project Architect’s/Advanced Degree Researchers’ contract with PreScouter and this Agreement provided that (a) Client notifies PreScouter prior to any such direct or indirect solicitation by Client (or Client’s affiliate, as the case may be), and (b) any such employment of the Project Architects or Advanced Degree Researcher(s) shall be subject to an agreement between Client and PreScouter or a PreScouter affiliate designated by PreScouter.

6.2 PreScouter shall be deemed notified pursuant to clause 6.1 (a) of this section upon Client sending an email to orders@PreScouter.com.

7. Miscellaneous

7.1 All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the state of Illinois or another location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. Any such arbitration shall be conducted by an arbitrator experienced in professional services law and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction.

7.2 The terms herein shall prevail over any inconsistent statements or provisions contained in any purchase order, bill, or other writing passing between the parties unless agreed to in writing by both Parties.

7.3 PreScouter and its affiliates reserve the right to include client testimonials and listings of representative clients on PreScouter’s (or its affiliates’) websites, marketing brochures, and/or sales material.

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