This NODESOURCE TRAINING AGREEMENT ("Agreement") is entered into and made effective as of the date of the executed Order Form (the "Effective Date") by and between the person or entity noted on the Order Form requesting training(the "Client") and NodeSource, Inc. ("NodeSource") (each, a "Party"and together, the "Parties").
1. SERVICES PROVIDED
Client has asked and NodeSource has agreed to provide enterprise Node.js Educational Training to Client (hereafter, the "Services") under the terms and conditions set forth below. The Order Form, attached hereto and incorporated by reference, will detail the number of Client's persons to whom training will be provided, the length of the training sessions, the location of the training, and the fee for the Services.
Fees. Client agrees to pay the fee specified in the Order Form.
3. PAYMENT TERMS
Payment will be made within thirty (30) days from the invoice date ("NET 30"), payable in U.S. dollars at the address or to the bank account provided to Client by NodeSource. Past due amounts will incur a 1.5% interest charge per month, compounded monthly.
4. TERM AND TERMINATION
4.1. Term. This Agreement shall commence on the Effective Date and shall continue for a period specified on the Order Form.
4.2. Termination. This Agreement and all rights under this Agreement will terminate automatically and cease to be effective on the earlier of (1) termination of this Agreement by NodeSource after providing thirty (30) days written notice of its intent to terminate, or (2) termination of this Agreement by NodeSource for Client's failure to comply with any term(s) of this Agreement, including failure to timely pay any undisputed past due amounts, after being provided seven (7) days written notice by NodeSource.
4.3. Consequences of Termination; Survival. In the case of termination by NodeSource under subparts (1) or (2) above, NodeSource will refund to Client a prorated amount of Client's fee, if applicable. Any outstanding payment obligations in this Agreement shall survive any termination of this Agreement.
5.1. Access to key personnel. Client will provide reasonable access to key personnel in a timely fashion.
5.2. Additional Requests. Any additional requests for work not detailed in this Agreement are outside the scope of SOW will be deemed to be outside the scope of NodeSource Node.js educational training, and will be addressed on a case by case as they arise. If such a request forces a change to the Services, timetable, cost estimates, or any other aspects of this document, that item will require additional sign-off by the Parties.
5.3. Types of data to be provided to NodeSource. Client agrees that any and all data provided to NodeSource shall not include any personally identifiable information as described by the GLBA or HIPAA, information described in PCI DSS, or information otherwise protected by any Federal or State act.
6. RELATIONSHIP BETWEEN THE PARTIES
6.1. Status. NodeSource's relationship with Client shall be that of a non-exclusive independent contractor and nothing in this Agreement shall be construed to create a partnership, joint venture, or employer-employee relationship. NodeSource is not an agent of Client and is not authorized to make any representation, contract, or commitment on behalf of Client. NodeSource and its employees shall not be entitled to any of the benefits that Client may make available to its employees. NodeSource shall be solely responsible for all tax returns and payments required to be filed with or made to any federal, state or local tax authority with respect to NodeSource's performance of Services and receipt of payments under this Agreement.
6.2. No Withholding. Client will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain worker's compensation insurance on behalf of NodeSource or its agents or employees. NodeSource hereby agrees to indemnify, defend, and hold Client harmless against any and all such taxes or contributions, including penalties and interest.
6.3. Foreign Corrupt Practices Act. NodeSource represents that it is aware that it is illegal under the United States Foreign Corrupt Practices Act ("FCPA") to give, offer, promise or authorize giving anything of value to any government official or political party in an effort to win or retain business or secure any improper advantage. NodeSource will not take any action that, if done by an American citizen, would be a violation of the FCPA, and NodeSource will ensure that any individual that performs work under this Agreement will not take such action.
6.4. Subcontractors. NodeSource may engage subcontractors to assist with the performance of the Services, provided that NodeSource shall be solely responsible for the acts and omissions of all subcontractors engaged by NodeSource and authorized to perform Services hereunder. Subcontractors performing Services shall be deemed Personnel for the purposes of this Agreement.
7. CONFIDENTIAL INFORMATION
7.1. Definition. "Confidential Information"means any information disclosed by one Party (the "Disclosing Party") to another Party (the "Receiving Party"), whether disclosed verbally, in writing, or by inspection of tangible objects. Confidential Information shall not include any information that: (a) was in the Receiving Party's lawful possession prior to the disclosure, as clearly and convincingly corroborated by written records, and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (b) is lawfully disclosed to the Receiving Party by a third party without actual, implied or intended restriction on disclosure through the chain of possession, or (c) is independently developed by the Receiving Party without use of or access to the Confidential Information, as clearly and convincingly corroborated by written records.
7.2. Requirements. The Receiving Party agrees that it shall not disclose to third parties or use in any way the Disclosing Party's Confidential Information, other than in the course of performance of the Services or as otherwise authorized under this Agreement. The Receiving Party will disclose Confidential Information only to the Receiving Party's Representatives having a need-to-know for the performance of the Services under this Agreement, provided the Receiving Party shall have entered into confidentiality agreements with any such Representatives having obligations of confidentiality as strict as those herein prior to the disclosure to such Representatives and shall cause all such Representatives to adhere to said confidentiality obligations. The Receiving Party shall not, and shall not authorize others to, remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Confidential Information. The Receiving Party will promptly upon discovery of any loss or unauthorized use or disclosure of Confidential Information notify the Disclosing Party in writing and take all necessary steps to mitigate the loss or unauthorized use or disclosure of Confidential Information. The foregoing prohibition on disclosure of Confidential Information shall not apply to the extent certain Confidential Information is required to be disclosed by the Receiving Party as a matter of law or by order of a court, provided that the Receiving Party provides the Disclosing Party with prior written notice of such obligation to disclose and reasonably assists in obtaining a protective order. Upon termination of this Agreement or earlier as requested by the Disclosing Party, the Receiving Party shall deliver to the Disclosing Party any and all materials, documents or other media (whether maintained electronically or otherwise) containing Confidential Information, together with all copies thereof in whatever form.
8. INTELLECTUAL PROPERTY
8.1. NodeSource Intellectual Property. NodeSource is and shall remain the exclusive owner of, and retains all Intellectual Property Rights and all other ownership interests in and to, the Services (which expressly includes any related software and electronic processes). Client shall have no rights with respect to the Services other than the right to receive applicable output. Client will not, and will not permit any third party, to copy, transmit, distribute, sell, rent, lease, transfer, reproduce, modify, adapt, enhance, translate, reverse engineer, disassemble, decompile, attempt to derive source code, or create derivative works of NodeSource's software and electronic processes, or components thereof. Client acknowledges and agrees that, except for any licenses expressly set forth herein, nothing contained in this Agreement shall be construed as granting to the Client, by implication, estoppels or otherwise, any right, title or interest in and to any Intellectual Property Rights of NodeSource, and Client shall not take any actions inconsistent with the foregoing. In addition to and without limiting any other rights and remedies available to an owner of Intellectual Property Rights, such owner may obtain injunctive relief without requirement of posting a bond to redress or prevent violations of this Section.
8.2. Client Intellectual Property. Client is and shall remain the exclusive owner of, and retains all Intellectual Property Rights and all other ownership interests in and to, the products offered by Client. NodeSource will be free to use for any purpose the Residuals resulting from its access to or work with any of Client's Intellectual Property Rights or Confidential Information. "Residuals"means general knowledge, skills and experience, not including Client's Intellectual Property Rights or Confidential Information, in non-tangible form, which may be gained by NodeSource in the performance of this Agreement. NodeSource shall have no obligation to pay royalties for any work or revenues derived or resulting from the use of Residuals.
9. REPRESENTATIONS AND WARRANTIES
9.1.NodeSource hereby represents and warrants that:
(a)the Services will be performed in a competent and professional manner by Personnel skilled in the relevant areas of expertise; (b) NodeSource has the requisite rights and licenses to fully comply with Section 8 (Intellectual Property) of (c) NodeSource shall comply with all applicable state, federal and local laws and regulations in the performance of Services.
9.2. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1 ABOVE, NODESOURCE EXPRESSLY DISCLAIMS AND MAKES NO OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY.
10.1. Insurance. NodeSource shall carry commercial general liability insurance and, if applicable, worker's compensation insurance as required by law, together with employer's liability insurance coverage and professional errors and omissions liability insurance coverage. NodeSource shall furnish, upon request, a certificate of insurance evidencing the commercial general liability insurance policy limits, including premises liability, completed operations/products, if applicable, and contractual liability limits not less than One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, death and property damage liability and Two Million Dollars ($2,000,000) in the aggregate. NodeSource shall also furnish a certificate of insurance evidencing professional errors and omissions liability insurance limits of not less than (i) One Million Dollars ($1,000,000) per claim and (ii) Two Million Dollars ($2,000,000) in the aggregate. All policies shall be written by reputable insurance companies authorized to do business in New York and a Best's policyholder rating of not less than A VII. Such insurance shall be primary and non-contributing to any insurance maintained or obtained by Client and all such insurance shall not be cancelled or materially reduced without thirty (30) days prior written notice to Client. In no event shall the limits of any policy be considered as limiting the liability of NodeSource under this Agreement.
11. INDEMNITY; LIMITATION OF LIABILITY
11.1. Indemnification. Each Party shall fully indemnify, defend and hold harmless the other Party, its affiliates, and their officers, directors, employees, agents, successors and assigns ("Party Indemnitees") from and against any and all claims, damages, liabilities, losses, and expenses (including any and all attorney fees, expenses and costs) incurred by or asserted against the Party Indemnitee of whatever kind or nature due to (a) a breach or alleged breach by the Party of any obligation, representation or warranty in this Agreement, or (b) negligent or willful acts of the Party or Personnel. Each Party shall promptly notify the other Party of any such claims, suits and actions, and upon request, provide reasonable assistance to the other Party. Neither Party shall enter into any settlement nor compromise related thereto that contains an admission on the part of the other Party or otherwise negatively impacts the other Party in any manner without the prior written consent of the other Party.
11.2. LIMITS OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CLAIM FOR ANY INDIRECT, WILLFUL, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, FOR LOSS OF BUSINESS PROFITS, FOR INTELLECTUAL PROPERTY INFRINGEMENT, OR DAMAGES FOR LOSS OF BUSINESS OF THE OTHER PARTY OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, OR LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY. IN NO EVENT SHALL EITHER PARTY'S TOTAL CUMULATIVE LIABILITY OF EACH AND EVERY KIND UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID TO NODESOURCE FOR SERVICES PERFORMED IN ACCORDANCE WITH THIS AGREEMENT. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
12.1.Each of the Parties agrees that during the term of this Agreement, and for a period of twelve (12) months following the termination of this Agreement, neither Party will, except with the other Party's prior written consent, solicit the other Party's Representatives.
13.1. Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its choice or conflict of laws provisions. Client hereby consents to exclusive jurisdiction and venue in the state and federal courts sitting in New York, New York.
13.2. Entire Agreement. This Agreement and the Exhibits attached hereto contain the full and complete understanding and agreement between the Parties relating to the subject matter hereof and supersede all prior and contemporary understandings and agreements, whether oral or written, relating such subject matter hereof. Any modification or amendment to this Agreement shall be effective only if in writing and signed by both Parties.
13.3. Publicity. Neither Party will use the other Party's name nor marks, refer to, or identify the other Party in any advertising or publicity releases, promotional material, or marketing correspondence without the other Party's prior written approval. Notwithstanding the foregoing, NodeSource may publish Client's name as part of a list of clients NodeSource has worked with.
13.4. Notice. Any and all notices permitted or required to be given hereunder shall be deemed duly given: (i) upon actual delivery, if delivery is by hand; or (ii) one (1) day after being sent by overnight courier, charges prepaid. Notices to Client shall be sent to the address on the Order Form. Notices to NodeSource shall be sent to the address on the Order Form, or at such other address for which NodeSource gives notice hereunder. The Parties agree that notice by email can be provided to email addresses specified on the Order Form.
13.5. Assignment. Except in connection with a business transaction involving all or substantially all of a party's assets or equity, this Agreement may not be assigned, in whole or in part, by either Party without the prior written consent of the other Party. Any attempted assignment or delegation by either Party without such consent, except as expressly set forth herein, will be void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of each Party hereto and its respective successors and assigns.
13.6. Arbitration and Conflict Resolution. Any disputes that arise between the Parties with respect to the performance of this agreement shall first be addressed by a meeting between the Parties and an attempt to resolve the issue in good-faith. If such a meeting is not successful, the Parties agree that the transactions contemplated in this Agreement have a substantial nexus to interstate commerce and, in lieu of judicial proceedings and except for instances where the sole remedy sought is emergency injunctive relief, the Parties will submit to binding arbitration by a panel of three (3) arbitrators of the American Arbitration Association under its rules and procedures in effect at the time of submission. The costs of such arbitration, including reasonable attorney's fees, shall be borne by the predominantly non-prevailing Party in such arbitration. Each Party shall choose one arbitrator, and the third arbitrator shall be chosen by the two arbitrators selected by the Parties. The location of the arbitration shall be in New York, New York. The final arbitration decision shall be enforceable by a court of competent jurisdiction.
13.7. Compliance with Laws, Export Control. Client shall comply with all United States, foreign and local laws and regulations including, without limitation, export control laws and regulations.
13.8. Waiver, Modification. The failure of either Party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either Party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that Party's right to enforce such provisions or exercise such option.
13.9. Force Majeure. Neither Party shall be responsible for any delay or failure to perform any part of this Agreement to the extent that such delay or failure is caused by fire, flood, explosion, war, embargo, government requirement, civil or military authority, act of God, act or omission of carriers, or other similar causes beyond its control. If any such event of force majeure occurs and such event continues for a period of sixty (60) days or more, the Party delayed or unable to perform shall give immediate notice to the other Party, and the Party affected by the other's delay or inability to perform may elect, at its sole discretion, to immediately terminate this Agreement.
13.10. Severability. In the event any provision of this Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions contained herein) shall remain in full force and effect.
13.11. Counterparts. This Agreement may be executed in one or more counterparts and by exchange of signed counterparts transmitted by facsimile, email, or other electronic means, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same original instrument. In the event Client has executed a Master Services Agreement with NodeSource, the terms of this Agreement shall control in the event of any conflict between the two agreements In the event of any inconsistency between this Agreement and the Order Form, the terms of the Order Form shall take precedence.
The following terms shall have the meanings set forth below:
14.1. "Affiliates"means any person or entity directly or indirectly controlling, controlled by, or under common control with one of the Parties to this Agreement.
14.2. "Representative"means a director, manager, member, officer, agent, employee, contractor, or advisor of a Party.
14.3. "Intellectual Property"means all worldwide rights in and to intellectual property, including without limitation rights to inventions, trade secrets, know-how, technology, research tools, data, software, improvements and rights of authorship and attribution, whether or not protected by patents or copyrights, and including, without limitation, patent applications, patents, trade secret rights, copyrights, trademarks, and other exclusive or non-exclusive rights pertaining to intellectual property owned or controlled by a Party.