Unless the parties execute a Master Services Agreement, acceptance of services by PrimeSource Building Products, Inc. (“PrimeSource”) provided by a service provider (“Contractor”) is expressly conditioned on Contractor’s acceptance of the following terms and conditions, including those that are different from, or in addition to, any terms set forth in a statement of work, proposal, Contractor’s form agreement, or other ordering document proposed by Contractor and accepted by PrimeSource (each, an “Order”). Any different or additional terms contained in any Order or any other form provided by Contractor are hereby expressly rejected by PrimeSource and shall be without force or effect, and these Terms and Conditions will govern in the event of a conflict.1. Services and Deliverables: Contractor will provide the specific services and deliverables (respectively, the “Services” and the “Deliverables”) as set forth in the Order. The Order will detail the scope of Services to be performed and any other terms and conditions, including whether the Services will be performed on either a fixed fee or time-and-materials basis.
2. Definitions: Terms not otherwise defined herein shall have the following meanings for purposes of this Agreement (including without limitation any Order): (i) “Confidential Information” means this Agreement, any Orders, including the existence and terms thereof, and the Disclosing Party’s proprietary or confidential information, including, without limitation, technical data, trade secrets, customer information, cost and pricing information, product requirements and specifications, or knowhow, whether existing or contemplated, that is disclosed, directly or indirectly, to Receiving Party, in writing, orally or by drawings or inspection of documents or other property; provided, however, that “Confidential Information” shall not include any information that Receiving Party can show by written evidence that (A) prior to disclosure, is in the public domain, or (B) after disclosure, becomes known to the public through no act or omission in violation of this Agreement by Receiving Party or any of its agents, representatives, or employees; (ii) “Deliverables” means any work product delivered pursuant to this Agreement; (iii) “Disclosing Party” means a party disclosing Confidential Information in connection with any Order; (iv) “Law” means common law, statutes, codes, rules, regulations, reporting or licensing requirements, ordinances, and other pronouncement having the effect of law of the United States, any other country, or any state or province or other similar political subdivision, including those promulgated, interpreted or enforced by any governmental or regulatory authority that are relevant to the performance of this Agreement, including any of the foregoing Laws enacted during the Term; (v) “reasonable steps” to protect Confidential Information means the steps that the Receiving Party takes to protect its own, similarly confidential or proprietary information, which shall not be less than a reasonable standard of care; (vi) “Receiving Party” means a party that receives Confidential Information in connection with any Order; (vii) “Security Information” means a username, passcode, or other security information used to access the Systems; (viii) “Systems” means PrimeSource’s computer systems and/or network; and (ix) “Third Party Materials” means equipment, supplies, facilities, computer code, work product, inventions or materials of any other party.
3. Invoicing & Payment: Contractor will invoice PrimeSource on a monthly basis for either (i) the hours worked and expenses incurred, based on Contractor timesheets and the terms set forth in the Order, for Services performed on a time-and-materials basis, or (ii) the prorated monthly amount for Services subject to a flat fee. Payment on undisputed amounts is due sixty (60) days after PrimeSource’s receipt of Contractor’s invoice. PrimeSource will be responsible for any legally imposed, present or future sales, value-added, or other similar taxes applicable to the services to the extent such taxes are the legal liability of, or required to be collected from, PrimeSource. Under no circumstances shall PrimeSource pay or be liable for: (i) any interest, penalties, fines, or other such charges incurred due to Contractor’s failure to pay or collect when due any taxes owed with respect to this Agreement or any Order, or due to Contractor’s failure to notify PrimeSource of any taxes owed with respect to the Agreement or any Order; or (ii) any taxes based upon Contractor’s net income or capital or any taxes imposed upon Contractor solely by reason of Contractor’s doing business in or being incorporated or organized in the jurisdiction imposing such taxes. Contractor agrees to indemnify PrimeSource for Contractor’s failure to collect and pay any taxes when due.
4. Term & Termination: Each Order will be in effect for the term set forth therein; provided, however, that PrimeSource may terminate any Order upon thirty (30) days’ prior written notice. These Terms and Conditions will continue to apply to each Order until the effective date of the Order’s expiration or termination. In the event of Contractor’s breach of any Order, PrimeSource may, at its sole option, terminate only the applicable Order or terminate all Orders with Contractor; provided, however, that PrimeSource provides Contractor with written notice of the breach, and Contractor fails to cure such breach within ten (10) days after Contractor’s receipt of such notice.
5. Independent Contractor: The parties agree that Contractor will act as an independent contractor and will be responsible for the payment of salary, worker’s compensation, disability benefits, and the like for its personnel. Contractor may not subcontract any or all of the Services without PrimeSource’s prior written consent, which PrimeSource may withhold in its sole discretion. If applicable, Services supplied by third parties will be subject to these Terms and Conditions as if the Services were supplied directly by Contractor, and Contractor will remain responsible for all of its obligations under any Order.
6. Insurance: Contractor agrees to maintain the following minimum insurance coverage during the term of this Agreement: (i) worker’s compensation insurance or employer’s liability insurance, as required by applicable law; (ii) business automobile liability insurance with bodily injury and property damage limits of $1,000,000 combined single limit; (iii) commercial general liability and property damage insurance with bodily injury and property damage limits as follows (a) each occurrence limit of $1,000,000, (b) products/completed operations aggregate limit of $1,000,000, (c) advertising injury and personal injury aggregate limit of $1,000,000, and (d) general aggregate limit of $2,000,000; (iv) errors and omissions insurance with limits of $1,000,000 per claim and policy aggregate. Contractor will furnish certificates of insurance on or before beginning work under any Order. Contractor will notify PrimeSource in writing at least thirty (30) days prior to any cancellation or non-renewal of any of the above-mandated policies or reduction in coverages. Contractor shall name PrimeSource as an additional insured under the commercial general liability policy. Contractor agrees that Contractor’s insurance shall be primary and non-contributory.
7. Work Product Rights & Access: Contractor agrees to waive any rights in the Deliverables (excluding Contractor’s proprietary tools, methodologies and technical elements, which shall remain the sole property of Contractor) delivered pursuant to this Agreement, subject to payment for the Services applicable thereto.
8. Confidential Information:
(a) Each Receiving Party acknowledges that it has been informed of the confidential and proprietary nature of the Disclosing Party’s Confidential Information and agrees that Receiving Party shall, at all times, take all reasonable steps to ensure that such Confidential Information is not disclosed to third parties or used for any purpose other than fulfilling Receiving Party’s obligations under this Agreement. Receiving Party may disclose the Confidential Information only to those of its employees with a need to know such information to fulfill Receiving Party’s obligations under this Agreement. Receiving Party shall inform each such employee of the confidential nature of such information and of Receiving Party’s obligations with respect to such information.
(b) Notwithstanding the nondisclosure obligations under this Section 7, if Receiving Party is required to disclose Confidential Information pursuant to applicable Law, Receiving Party may do so without liability hereunder, provided that Receiving Party (i) takes reasonable steps to obtain confidential treatment for such items, (ii) gives Disclosing Party (if legally permissible) prior written notice of the anticipated disclosure, and (iii) follows Disclosing Party’s reasonable instructions with respect to such disclosure.
(c) Upon the expiration or earlier termination of this Agreement, or upon written request by the Disclosing Party at any time prior to the expiration or earlier termination of this Agreement, the Receiving Party shall promptly return or destroy all Confidential Information in its possession, in whatever form, including all copies, summaries, synopses, or derivations of such Confidential Information, and if destroyed, confirm such destruction to the Disclosing Party’s satisfaction. Notwithstanding the foregoing, Receiving Party shall not be required to destroy Confidential Information to the extent (i) necessary to comply with applicable Law or (ii) retained in accordance with previously established automatic electronic document retention/backup policies and systems, provided that personnel whose functions are not primarily information technology in nature do not have access to such retained copy. Any Confidential Information so retained shall remain subject to the obligations of confidentiality hereunder.
9. Non-Solicitation: During the term of any Order and for one year thereafter, each party agrees not to directly or indirectly solicit or hire the other party’s personnel; provided, however, that the foregoing shall not prevent a party (“Hiring Party”) from soliciting or hiring personnel (i) who contacts Hiring Party on his or her own initiative without any direct or indirect solicitation by, or encouragement from, Hiring Party, (ii) as a result of placing general advertisements on the Internet or in trade journals, newspapers, or similar publications that are not directed at the other party or its personnel, or (iii) as a result of the efforts of employment recruiters who contact such personnel on the recruiter’s own initiative without any direct or indirect encouragement or direction from Hiring Party relating to the other party or its personnel.
10. Warranty: Contractor warrants that the Services and Deliverables will be provided in a professional and workmanlike manner pursuant to applicable Law and the terms of any Order. For any breach of the foregoing warranty, Contractor shall re-perform the deficient Services or provide replacement Deliverables at no additional cost to PrimeSource, or if Contractor cannot substantially correct a breach in a commercially reasonable manner, PrimeSource may terminate, at its sole discretion, either the applicable Order or all Orders with Contractor and recover all amounts paid to Contractor thereunder, in addition to any other rights and remedies PrimeSource may have. In addition, Contractor warrants that the Services and any Deliverables will not misappropriate or infringe on any third party’s intellectual property or similar rights, including without limitation, any trademark, trade secret, copyright or patent rights.
11. Compliance with Laws: Contractor will perform its obligations under this Agreement in compliance with all applicable Laws. Compliance with Laws shall include, without limitation, compliance with (i) U.S. Foreign Corrupt Practices Act of 1977, as amended, or any such other anti-bribery or anti-corruption Laws applicable to Contractor, its affiliates or personnel, or any contractor, subcontractor, or supplier to Contractor or any personnel or affiliate thereof, or any director, officer, agent, employee or other person acting on behalf of any of the foregoing, directly or indirectly, and (ii) minimum age of employment requirements prescribed by the International Labor Organization conventions or applicable Law, whichever is higher. Contractor shall not compel any person to work involuntarily or under any threats or duress nor shall Contractor employ forced labor or impose similar working conditions. Contractor will provide PrimeSource with any information reasonably required in order for PrimeSource and its customers to comply with all Laws. Contractor shall ensure to the best of its ability that all provided documentation, or other statements, written or verbal, pertaining to the Services or any deliverables are complete in all material respects and contain no material omissions or fraudulent or false statements in contravention of the U.S. Tariff Act of 1930, as amended, or any other applicable Law, and shall supply all documents related to the Services and any deliverables promptly upon PrimeSource’s request. Contractor represents and warrants that neither it nor any of its owners, officers, directors, employees, agents, or representatives has offered or given, and shall not offer to give, to any employee, agent or representative of any supplier to Contractor, or to any government official, any money, gifts, favors, lavish or unusual hospitality, loans, or anything of more than nominal value.
12. Indemnification: Contractor shall, at its expense, indemnify, hold harmless and at PrimeSource’s option, defend PrimeSource and its affiliates and each of their directors, officers, principals (partners, shareholders, or holders of an ownership interest), employees, representatives, and agents (collectively, the “PrimeSource Indemnified Parties”) from and against any and all claims, judgments, losses, damages, demands, payments, fines, costs, expenses (including reasonable attorney’s fees and court costs), liabilities, and recoveries of any nature or description incurred by a PrimeSource Indemnified Party, arising from or out of: (i) the personal injury to or death of any person, or any property damage caused by or attributable to the Services or Deliverables, or any act or omission of Contractor or any or its employees, agents, or representatives, including any fault or negligence relating to product liability; (ii) Contractor’s material breach of this Agreement (including breach of any warranty); (iii) breach of the confidentiality provisions of this Agreement; or (iv) any claim, demand, action, suit, or proceeding alleging that the Services or any Deliverables infringe on a third party’s intellectual property or similar rights (including, without limitation, trademark, trade secret, copyright or patent rights). Contractor will not, without the prior written consent of the PrimeSource Indemnified Party (such consent not to be unreasonably withheld or delayed), settle any third party claim for which such PrimeSource Indemnified Party is seeking indemnification from Contractor.
13. Limitation of Liability: Neither party shall be responsible for any consequential, indirect, punitive, incidental, or special damages (including loss of profits, data, business or goodwill), regardless of whether such liability is based on breach of contract, tort or otherwise, and even if advised of the likelihood of such damages. The maximum liability of either party shall be limited to the amounts paid by PrimeSource for Contractor’s Services under this Agreement, provided that the foregoing shall not limit PrimeSource’s obligation to pay in full all undisputed amounts for Services rendered and invoiced by Contractor. This Section 12 shall not apply to exclude or limit damages arising from a party’s breach of Section 8 (Confidential Information) or a party’s obligations under Section 12 (Indemnification).
14. Disputes: This Agreement shall be governed by and interpreted in accordance with the laws of the State of Texas. The parties agree to the exclusive jurisdiction of the federal and state courts sitting in Dallas County, Texas in connection with any dispute arising hereunder. The parties are sophisticated parties have had the opportunity to consult with legal counsel of their choice. EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES HEREUNDER.
15. Third-Party Materials: Contractor will not disclose to PrimeSource or use in its Services or Deliverables any trade secrets or confidential information of a third party that Contractor is not lawfully entitled to disclose or use in such manner. Contractor will not use any Third Party Materials in any Deliverable or in Contractor's performance of Services under this Agreement unless: (a) Contractor has the full right and authority to do so without violating any rights of any third party; (b) Contractor has obtained all necessary rights to enable Contractor to perform its obligations under the Agreement and grant the rights granted herein and to permit PrimeSource to utilize the Third Party Materials as contemplated under this Agreement at no additional cost to PrimeSource; (c) PrimeSource's use of such Third Party Materials will not restrict or impair in any manner its use of the Deliverables or subject PrimeSource to any obligation or liability; and (d) such Third Party Materials are specifically identified to PrimeSource in writing in advance of any use and PrimeSource has agreed in writing to such use. Contractor hereby grants to PrimeSource a perpetual, irrevocable, sublicensable, non-exclusive, royalty-free, worldwide license to use, exploit, sell, copy, reproduce, manufacture, distribute, export, publicly display, publicly perform, sublicense, modify, improve, enhance and make derivative works of such Third-Party Materials as incorporated in the Deliverables.
16. Security Information: Contractor acknowledges that the PrimeSource may provide Contractor with Security Information, which Contractor may use to access the Systems. Contractor shall maintain the confidentiality of its Security Information and shall not disclose the Security Information to any third-party, except Contractor’s employees and contractors having a need to receive or know the Security Information to perform the services under an Order. Contractor shall be responsible for all activities performed using its Security Information. Contractor is solely responsible for all acts or omissions that occur under its Security Information, including but not limited to the content of any communications that are made using the Security Information or any of the Systems. CONTRACTOR SHALL NOTIFY PRIMESOURCE IMMEDIATELY OF ANY UNAUTHORIZED USE OF CONTRACTOR’S SECURITY INFORMATION OR IF CONTRACTOR BELIEVES THE CONFIDENTIALITY OF ANY OF ITS SECURITY INFORMATION HAS BEEN COMPROMISED.
17. Use of Security Information or Systems: Contractor agrees not to use, or permit others to use, the Security Information or Systems in ways that (i) violate this Agreement or any applicable law, regulation, rule, code, or ordinance, (ii) infringe the rights of others, or (iii) interfere with the users, services, or equipment and software of PrimeSource’s Systems or other systems or networks. By way of example and not limitation, Contractor agrees not to distribute unsolicited advertising, chain letters or other unsolicited bulk electronic mail (i.e., spam); propagate computer worms, destructive programs or denial of service attacks or viruses; use a false identity; attempt to gain unauthorized entry to other computers, data or any site or network; distribute or store child pornography; distribute obscene or defamatory material over the Internet; or infringe copyrights, trademarks or other intellectual property rights. Contractor further agrees to comply with U.S. export laws concerning the transmission of technical data and other regulated materials via the Systems. Contractor acknowledges and agrees that PrimeSource reserves the right, in its sole discretion, to restrict, suspend or terminate Contractor’s Security Information or access to the Systems, with or without notice, if use of the Security Information or Systems by Contractor or anyone using its Security Information, in PrimeSource’s sole judgment, violates this Agreement, is unlawful or adversely affects or threatens PrimeSource’s network or service, suppliers, contractors, other users or employees, including but not limited to, use that is prohibited or that generates excessive Internet traffic or emails.
18. Attorney’s Fees: In the event of litigation arising from or related to any Order, the non-prevailing party shall reimburse the prevailing party for all reasonable costs and expenses (including reasonable attorney’s fees) associated with the litigation (including any appeal or suit to enforce any judgment) upon receipt of a final non-appealable judgment from a court of competent jurisdiction.
19. No Publicity: Contractor shall not disclose, advertise, publish, or otherwise identify PrimeSource as a customer or disclose the existence of, these Terms and Conditions or any Order without PrimeSource’s prior written consent, which PrimeSource may withhold in its sole discretion.
20. Miscellaneous: The Order and these Terms and Conditions represents the entire understanding of the parties with regard to the Services and any Deliverables and may be amended only by an instrument in writing executed by both parties. In the event of any conflict between the contents of any Order and these Terms and Conditions, these Terms and Conditions shall be controlling. Neither party will be responsible for any failure or delay in performance due in whole or in part to any cause beyond such party’s reasonable control. No delay or failure of either party to exercise any right or remedy will operate as a waiver thereof. Orders may be executed in counterparts. Signatures on any Orders may be delivered by facsimile, electronic transmission in portable document format (.pdf) or other electronic means in lieu of an original signature, and any such signature shall be considered as original.