These Standard Terms and Conditions Agreement (“Agreement”) governs the provision of certain products and services (as defined below) by WPT to Customer. It supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter and may only be amended with mutual written agreement of the Parties:
1. Goods and Services.
- WPT shall provide Customer access to one or more products (“Products”) and/or software applications (“Software”) as identified in written quotations and/or purchase orders exchanged by the Parties (“Order”). Each Order shall be deemed a part of and shall be subject to the terms and conditions of this Agreement. In the event of a conflict between this Agreement, a Quotation, or a Purchase Order, the terms of this Agreement shall control.
- WPT may also provide consulting, training, or professional services under this Agreement (collectively, “Services”) as identified in an Order.
- Customer acknowledges and agrees that WPT may, at its sole discretion, use subcontractors and consultants to perform some of the Services to be provided under this Agreement. In the event WPT utilizes subcontractors or consultants to perform any of the Services, WPT shall remain responsible to Customer for performance under this Agreement.
2. Fees and Expenses.
- Customer shall pay WPT the amounts specified in a relevant Order (the “Fees”).
- Billing and Payment. WPT shall prepare and submit an invoice to the Customer for the Fees.
- Customer agrees to pay the Fees in accordance with each Order. If any amount owing by Customer is 30 or more days overdue, WPT may, without limiting its other rights and remedies, suspend Customer’s access to the Software and/or the Services until such amounts are paid in full.
3.Term and Termination. Unless stated otherwise in an Order, the Term of this Agreement shall be for one (1) year, commencing as of the Effective Date, and shall automatically renew for another one (1) year period, unless terminated by writing within thirty (30) days before the beginning of each renewal period. Termination of this Agreement shall not discharge either Party’s liability for obligations incurred hereunder and amounts unpaid at the time of such termination. Customer shall pay WPT for all amounts due prior to the effective date of termination.
4. Intellectual Property.
- License of Software. Subject to the terms and conditions of this Agreement and the applicable Order, WPT grants to Customer a non-exclusive and nontransferable license to the Software during the Term of this Agreement or as otherwise set forth in an Order.
- Ownership of Preexisting IP. WPT’s pre-existing intellectual property shall remain its sole and exclusive property.
- Ownership of Software. The Software licensed to Customer pursuant to this Agreement and/or an Order shall remain the sole and exclusive property of WPT. Customer shall not: (i) create derivate works based on the Software or copy any features, functions or graphics of the Software, (ii) copy any part or content of the Software (iii) reverse-engineer the Software, or (iv) access the Software in order to (a) build a competitive product or software, or (b) copy any features, functions or graphics of the Software.
5. Confidential Information.
- As used in this Agreement, “Confidential Information” means all trade secrets, data, information about pricing, forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if (A) the disclosing Party has taken reasonable measures to keep such information confidential; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information. Confidential Information shall not include any information which (A) was publicly known prior to the time of disclosure by the disclosing Party, or becomes publicly known after disclosure by the disclosing Party through no action or inaction of the receiving Party in violation of this Agreement; (B) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party; (C) is obtained by the receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (D) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.
- The receiving Party will only use and disclose the disclosing Party’s Confidential Information as reasonably necessary to deliver the Software and/or Services. Any other use or disclosure to a third-party is prohibited unless expressly permitted in writing by the disclosing Party. The receiving Party agrees to hold the disclosing Party’s Confidential Information in strict confidence and use reasonable measures to protect it as confidential. The receiving Party shall be permitted to disclose Confidential Information to third-parties only to the extent required by law, provided that the receiving Party gives the disclosing Party prompt written notice of such requirement and upon the request of the disclosing Party, the receiving Party cooperates in good faith and at the expense of the disclosing Party in any reasonable and lawful actions which the disclosing Party takes to resist such disclosure or limit the information to be disclosed.
- Upon written request by the disclosing Party, the receiving Party will promptly return or destroy all of the disclosing Party’s Confidential Information, provided that the receiving Party shall have the right, subject to the requirements of this Agreement, to retain disclosing Party’s Confidential Information contained in the receiving Party’s (i) professional work papers and (ii) secure, archival computer back-up files maintained in the ordinary course of business. If so requested by the disclosing Party, the receiving Party shall promptly certify to the disclosing Party that all Confidential Information has been returned or destroyed in compliance with this paragraph.
- Each party represents to the other that this is a valid and binding Agreement of the party and that nothing in it will place the party in breach of any other agreement. Each party also represents to the other that it will at all times comply with all applicable federal, state and local laws, rules, ordinances, regulations and codes. Each Party warrants and represents that it has the authority to execute, deliver and perform its obligations under this Agreement, having obtained all required Board of Directors’ or other consents, and is duly organized or formed and validly existing and in good standing under the laws of the state of its incorporation or formation.
- WPT warrants that the Products and Software will be free of any and all material manufacturing defects that make them unusable or inoperable and for which no reasonable work around exists (“Material Defects”). This warranty shall be for a period of one (1) year form the date of delivery and, for any Product, shall not exceed the manufacturer’s warranty applicable to the Product. Customer shall notify WPT in writing of all material defects covered by this warranty within fourteen (14) days of discovery by describing the technical issue and specifically identifying it to WPT as a “Material Defect” pursuant to this section. Any purported Material Defect not promptly identified in accordance with this section shall not be deemed a Material Defect and WPT shall not be liable for any claim for breach of warranty or breach of this Agreement related to said technical issue. Customer’s sole and exclusive recourse for any Material Defects covered by this warranty shall be (1) first, WPT shall have a reasonable time to repair, replace, or create a reasonable workaround for the Material Defect and (2) if the Material Defect is not resolved in six (6) months, the cost of a third-party to repair, replace, or create a workaround for the Material Defect up to and limited by the amount paid by Customer to WPT in the three (3) months preceding Customer’s notification of the Material Defect.
- EXCEPT AS EXPRESSLY SET FORTH HEREIN, WPT SPECIFICALLY DISCLAIMS ANY OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WPT DOES NOT WARRANT THAT THE PRODUCTS, SOFTWARE, OR SERVICES WILL BE ERROR-FREE OR THAT THEY WILL WORK WITHOUT INTERRUPTIONS.
7. LIMITATIONS OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, NOMINAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. EXCEPT FOR THE CUSTOMER’S OBLIGATION TO PAY THE FEES TO WPT, EACH PARTY’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THE SOFTWARE AND/OR SERVICES AND/OR THIS AGREEMENT, INCLUDING ATTORNEYS’ FEES, SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY THE CUSTOMER TO WPT UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS IN THIS PARAGRAPH TO NOT APPLY TO CUSTOMER’S PAYMENT OBLIGATIONS. THIS SECTION SHALL SURVIVE THE TERMINATION OF THE AGREEMENT.
8. Indemnification. Subject to the limitation of liability provisions in this Agreement, each party (the “Indemnifying Party”) agrees to indemnify, defend and hold the other party and its affiliates and their respective officers, directors, employees and agents harmless from and against all third-party claims, losses, liabilities, damages, expenses and costs, including attorney’s fees and court costs, arising out of the Indemnifying Party’s (i) gross negligence or willful misconduct, (ii) its material breach of any of the terms of this Agreement, or (iii) infringement of intellectual property of a third party except for claims about WPT Products or Software that were created based on specifications furnished by Customer. The Indemnifying Party’s liability under this Section shall be reduced proportionally to the extent that any act or omission of the other Party, or its employees or agents, contributed to such liability. The party seeking indemnification shall provide the Indemnifying Party with prompt written notice of any claim and give complete control of the defense and settlement of the Indemnifying Party, and shall cooperate with the Indemnifying Party, its insurance company and its legal counsel in its defense of such claim(s). This indemnity shall not cover any claim in which there is a failure to give the Indemnifying Party prompt notice to the extent such lack of notice prejudices the defense of the claim.
9. Cooperation of Customer. Customer agrees to comply with all reasonable requests of WPT and shall provide WPT’s personnel with access to all documents and facilities as may be reasonably necessary for the performance of this Agreement.
10. Non-Solicitation. During the term of this Agreement and for one year following the expiration or termination date of the Agreement, each Party agrees not to directly solicit or induce any employee who works on the subject matter of the Agreement to leave the employ of the other Party. This paragraph does not prohibit the Parties from responding to or hiring the other’s employees who inquire about employment on their own accord or in response to a public advertisement or employment solicitation in general.
11. Relationship of the Parties. The relationship of the Parties hereto is that of independent contractors. Nothing in this Agreement, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party’s employees or agents. Each of the Parties is an independent contractor and neither Party has the authority to bind or contract any obligation in the name of or on account of the other Party or to incur any liability or make any statements, representations, warranties or commitments on behalf of the other Party, or otherwise act on behalf of the other. Each Party shall be solely responsible for payment of the salaries of its employees and personnel (including withholding of income taxes and social security), workers’ compensation, and all other employment benefits.
12. Force Majeure. Neither Party shall be liable hereunder for any failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, acts of God, pandemics, or other similar or different occurrences beyond the reasonable control of the Party so defaulting or delaying in the performance of this Agreement, for so long as such force majeure event is in effect. The party whose performance is impacted by such occurrence (the “Impacted Party”) shall give notice within five (5) days of the occurrence to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such occurrence are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
13. Governing Law and Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of Texas, without giving effect to the principles of conflicts of law of such state. The Parties hereby agree that any action arising out of this Agreement will be brought solely in Tarrant County, Texas. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court. The Parties mutually agree to waive the right to a trial by jury and to have the judge of said court hear any dispute.
14. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Orders), without consent of the other party, to its Affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
15. Severability. If any provision or portion of this Agreement shall be rendered by applicable law or held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
16. Headings; Construction. The headings/captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain. This Agreement is the result of negotiations between the Parties and their counsel. Accordingly, this Agreement shall not be construed more strongly against either Party regardless of which Party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting Party.
17. Survival. Each term and provision of this Agreement that should by its sense and context survive any termination or expiration of this Agreement, shall so survive regardless of the cause and even if resulting from the material breach of either Party to this Agreement.
18. Rights Cumulative. The rights and remedies of the Parties herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
19. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument, without necessity of production of the others. An executed signature page delivered via facsimile transmission or electronic signature shall be deemed as effective as an original executed signature page.
20. Authorized Signatories. It is agreed and warranted by the Parties that the individuals singing this Agreement on behalf of the respective Parties are authorized to execute such an agreement. No further proof of authorization shall be required.
21. Waiver. No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter.
22. Entire Agreement; Modification. This Agreement and any Orders or SOWs shall be the entire Agreement between the Parties with respect to the subject matter hereof and supersedes any prior agreement or communications between the Parties, whether written, oral, electronic or otherwise. No change, modification, amendment, or addition of or to this Agreement or any part thereof shall be valid unless in writing and signed by authorized representatives of the Parties. Each Party hereto has received independent legal advice regarding this Agreement and their respective rights and obligations set forth herein. The Parties acknowledge and agree that they are not relying upon any representations or statements made by the other Party or the other Party’s employees, agents, representatives or attorneys regarding this Agreement, except to the extent such representations are expressly set forth in this Agreement.