This Client Agreement dated (the “Effective Date”) is entered into by and between Pangea Consultants, Inc. having an office at 3301 Ponce de Leon Blvd, Suite 220A, Coral Gables, FL 33134 (“PC”) and the entity identified below (the “CLIENT”).
Client:
The parties agree as follows:
1. Authorization
1.1 Authorization. PC gives Client the non-exclusive, non-transferable right to currently available PC products and services (“PC Products”). PC reserves all rights not expressly granted in this Agreement, including, but not limited to, the right to sell, directly or indirectly, to any Customer and to appoint other Clients.
1.2 Non-agency. Client may not represent itself as an agent of PC capable of binding PC to legal commitments.
2. Customer Agreement For Pc Products
2.1 Customer Acceptance. PC Products will be made available to Client only under the terms of PC’s standard terms of use which may not be altered or amended by Client.
2.2 No Modification by Client. Client may not alter or modify the PC Products. Client will not make any warranty or representation in relation to the PC Products which warranty or representation (if any) may only be.
3. Ownership And Restrictions
3.1 Ownership of Products. All proprietary and intellectual property rights including copyright, patent, trademark and trade secrets in the PC Products are and remain solely and exclusively with PC.
Client may not use PC Products in violation of any applicable law or regulation or for the purpose of developing a product or service competitive to the PC Products or any other purpose in a manner that is to PC’s commercial disadvantage.
Client may not reverse engineer, decompile, disassemble or use other technology or method to gain access to source code and trade secrets of the PC Products. Client may not modify or alter the PC Products.
4.Orders And Pricing
4.1 Orders. Orders for PC Products can be placed by way of:
(a) directly by Client to PC to be fulfilled electronically by PC to Client; -3-
(b) directly by Customers through a Microsoft platform such as Appsource to PC to be fulfilled
electronically by PC to Client;
(c) directly by Client to PC to be fulfilled electronically by PC to Client;
or by any other methods designated by PC.
4.2 Pricing and Payment for Client orders. In orders placed in accordance with section 4.1(a) (“Client Orders”), Client will purchase Products from PC at PC’s current list price for the Products. The PC Product prices listed are exclusive of any withholding taxes, duties or charges which shall be paid by Client.
5.Limited Warranty And Disclaimer
5.1 There is no warranty to Client with respect to the PC Products. THE PC PRODUCTS ARE PROVIDED “AS IS WHERE IS” AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND INCLUDING THOSE REGARDING NONINFRINGEMENT OF THIRD-PARTY RIGHTS, DURABILITY, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
5.2 IF FOR ANY REASON EITHER PARTY BECOMES LIABLE TO THE OTHER FOR DIRECT (or any other) DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION (in contract, tort or otherwise) INCURRED IN CONNECTION WITH THIS AGREEMENT, OR PC PRODUCT, THEN THE AGGREGATE LIABILITY OF A PARTY FOR ALL DAMAGES, INJURY AND LIABILITY INCURRED BY THE OTHER PARTY IN CONNECTION WITH THE PC PRODUCT OR THIS AGREEMENT (AND ANY AND ALL RECOVERABLE LEGAL COSTS) SHALL BE LIMITED TO THE FEES PAID IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO DAMAGES.
5.3 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING ANY LOST PROFITS OR LOST SAVINGS
6. Term And Termination
6.1 Term. This Agreement will be effective for an initial period of one (1) year from the Effective Date (the “Initial Term”). At the end of the Initial Term, this Agreement will renew automatically for successive one (1) year periods (each, a “Term”), unless either party gives notice of non-renewal to the other party at least sixty (60) days before expiration of the then-current Term, or otherwise terminates this Agreement pursuant to the provisions below.
6.2 Termination for Convenience. Either party may terminate this Agreement by providing sixty (60) days advance written notice to the other party. Without limiting the foregoing, Client acknowledges that PC may, in its discretion, terminate this Agreement in the event there is a direct or indirect change in the ownership, control or management of Client that, in PC’s reasonable judgement, may adversely affect PC’s rights.
6.3 Termination for Breach. Either party may terminate this Agreement: (a) in the event the other party is in material breach of any term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of notice of the material breach; (b) immediately if the other party breaches its obligations of confidentiality; or (c) if the other party ceases to conduct business in the normal course, becomes insolvent or bankrupt, becomes the subject of any proceeding under bankruptcy, insolvency or debtor’s relief law, has a receiver appointed, makes an assignment for the benefit of creditors, or is unable to comply with the provisions of this Agreement due to its financial condition.
6.4 Termination Obligations. Upon expiration or termination of this Agreement for any reason, all rights granted to Client hereunder will immediately cease. Client will cooperate with PC to terminate relations in an orderly manner. If either party is entitled under local law or otherwise for any special payment or termination indemnity as a consequence of termination or expiration of this Agreement, such party hereby waives and disclaims to the fullest extent permitted by law, any right to such payment or indemnity. -4-
6.5 Survival. The provisions of Sections 3 (Ownership and Restrictions), 4 (Limited Warranty and Disclaimer), 6.4 (Termination Obligations), 6.5 (Survival), 7 (Confidential Information) 8 (General) will survive the expiration or termination of this Agreement.
7. Confidential Information
7.1 For the purposes of this Agreement, “Confidential Information” means any information which is designated in writing or orally by the disclosing party at the time of disclosure to be confidential, or that, given the nature of the information or the circumstances surrounding its disclosure, should reasonably be considered to be confidential, including, but not limited to, the terms of this Agreement, price lists and any non-public information regarding the PC Products. Confidential Information does not include information which the receiving party can prove to a reasonable certainty: (a) is or became publicly available without breach of this Agreement; (b) was known to the receiving party, at the time of disclosure, as demonstrated by written evidence in existence at the time of disclosure; (c) was independently developed by the receiving party without any use of any of the Confidential Information of the disclosing party and by employees of the receiving party who have not had access to the Confidential Information, as demonstrated by written evidence created at the time of such independent development; (d) becomes known to the receiving party, without restriction as to confidentiality, from a source other than the disclosing party without
breach of this Agreement by the receiving party and otherwise not in violation of the disclosing party’s rights; or (e) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided however, that the receiving party will provide prompt notice of such order or requirement to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.
7.2 PC and Client each agree not to use any Confidential Information disclosed to it by the other party for its own use or for any purpose other than to exercise its rights and fulfill its obligations related to this Agreement. Neither party will disclose or permit disclosure of any Confidential Information of the other party to third parties. Each party will ensure that the Confidential Information of the other party is disclosed only to the extent required for fulfilling their respective obligations hereunder and only to (a) those of its directors, officers, employees, consultants or agents who need to have the information in order to fulfill their obligations in relation to this Agreement, and (b) who have executed written agreements obligating them to protect the Confidential Information of the disclosing party in a manner materially similar to the terms of this Agreement.
8.General
8.1 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the state of Florida, USA.
8.2 Injunctive Relief. The parties acknowledge and agree that, notwithstanding any other provisions of this Agreement, a breach by Client of Section 5.2 (Restrictions) or a breach by either party of the provisions of Section 7 (Confidential Information) may cause the irreparable damage to the non-breaching party for which recovery of money damages would be an inadequate remedy, and that the non-breaching party will be entitled to obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all remedies available at law.
8.3 Complete Agreement. This Agreement, together with its Schedules, is the complete and exclusive statement of the agreement between the parties with respect to the subject matter contained herein and supersedes and merges all prior representations, proposals, understandings and all other agreements, oral or written, express or implied, between the parties relating to the matters contained herein. This Agreement may not be modified or altered except by written instrument duly executed by both parties. The terms of any Client or Customer purchase order or any other ordering document will not be binding on PC and will not be construed to modify this Agreement. Any agreement that changes this Agreement must clearly state that it is an addendum or amendment to this Agreement and must be signed by both parties before it is considered executed and binding on the parties.
8.4 Force Majeure. Neither party will be liable to the other for any delays in performing or failing to perform any obligation under this Agreement in the event of and for so long as the performance of any such obligation is prevented or delayed by any cause beyond the reasonable control of such party (which expressly excludes a lack of sufficient funds), provided that the party prevented or delayed from performance immediately notifies the other party of such disability and resumes performance as soon as practicable following removal of the disability. -5-
8.5 Assignment. Client may not assign its rights, duties or obligations under this Agreement without PC’s prior written consent.
