This version of the CMC Purchasing Agreement (this “Agreement”) is made and entered into by and between CMC, LLC. (“CMC”) and the Client (“Client”) identified in statement of work or other transaction-specific document provided by CMC that specifically references this agreement (the “Sales Quote”). This agreement sets forth the terms and conditions under which CMC shall provide the Services and/or products described in the Sales Quote. The Sales Quote shall reference and be governed by this Agreement. The person who accepts this agreement and the sales quote represents and warrants that he or she has the power and authority to bind client and, and acknowledges on behalf of client that he or she has read this agreement, understands it, and agrees to be bound by its terms and conditions.
This Agreement and the Sales Quote constitute the complete and exclusive agreement between the parties concerning the subject matter of this Agreement and supersedes all oral or written proposals, negotiations, conversations and other communications between the parties relating to the subject matter of this Agreement.
Once any required signatures are obtained, any reproduction of this Agreement or the Sales Quote made by reliable means (for example, photocopy or facsimile) is considered an original, unless prohibited by local law; provided, however, that this shall not preclude either party from requiring the exchange of original signatures.
“Affiliate” is an entity that controls, is controlled by or is under common control with a party, where “control” means the legal, beneficial or equitable ownership, directly or indirectly through one or more intermediaries, of more than fifty percent of the aggregate of all voting equity interests in an entity.
“Product” is Equipment, a Program or a Third-Party Service. “Equipment” is a machine, its features, conversions, upgrades, elements or accessories, or any combination of them. Equipment includes CMC Equipment and third party Equipment.
“Program” is a commercially available computer software program, whether preloaded on Equipment or provided separately, including related licensed materials such as documentation. Programs include CMC Programs and third party Programs, but do not include Work Product. “Third-Party Service” is a service provided directly to Client by a third party, including services related to Equipment or a Program (including support and maintenance services) provided by the supplier or other third party.
“Service” is the performance of a task, provision of advice and counsel, assistance, or access to a resource (such as access to an information database) CMC makes available to Client as identified in the Sales Quote. Services do not include Third-Party Services.
Work Product” is a literary work(s) or other work(s) of authorship (such as software programs, programming tools, documentation, reports and drawings) that CMC develops for or otherwise delivers to Client under the Sales Quote. Work Product does not include Programs. “Preexisting Work Product” is Work Product in which the copyrights are owned by a third party or that CMC developed or had developed outside the scope of this Agreement and any generic enhancements made to such Work Product while performing Services.
2.1. Sales Quote. The Sales Quote shall set forth the Products and Services to be provided by CMC under this Agreement, the applicable prices and any requirements, specifications, schedules or terms in addition to those specified in this Agreement. The Sales Quote may require signature if requested by either CMC or Client. Client accepts the terms of this Agreement and the Sales Quote by doing any of the following:
(a) signing the Sales Quote or issuing a purchase order or similar document referencing the Sales Quote; (b) using the relevant Product or Service, or allowing others to do so or (c) making any payment for the relevant Product or Service. The use of pre-printed forms, including but not limited to purchase orders, e-mail or acknowledgements, shall be for convenience only and all pre-printed terms and conditions stated on such forms are void and of no effect. All orders for Products or Services are subject to approval by CMC at its corporate headquarters in Portsmouth, New Hampshire.
2.2. Conflicting Terms. If there is a conflict between the terms and conditions of this Agreement and the terms and conditions of the Sales Quote, the terms and conditions of this Agreement prevail unless the conflicting term in the Sales Quote expressly states that it is modifying the terms and conditions of this Agreement.
This Agreement shall remain in effect for the term specified in the Sales Quote unless terminated earlier as provided in this Section 3. Either party may terminate this Agreement or the Sales Quote if the other party materially breaches this Agreement or the Sales Quote and does not cure such breach within thirty (30) days after the non-breaching party gives written notice of such breach
describing in detail the specific nature and dates of the material breach. Any terms of this Agreement that by their nature extend beyond the expiration or termination of this Agreement, including the terms of Sections 4 (Charges and Payment), 5 (Intellectual Property Rights), 8 (Limitation of Liability) and 9 (General Provisions), shall remain in effect until fulfilled.
CMC shall invoice Client for Products, Services, taxes, and any other agreed-upon charges in accordance with the fees set forth in the Sales Quote (note: for some transactions, the Sales Quote shall constitute the invoice). Unless otherwise provided in the Sales Quote, Client shall pay such invoices within 30 days of the date of invoice and all payments shall be made in U.S. Dollars without offset, reduction or abatement. If any authority imposes a tax (including sales, use, excise, value-added and other transaction-based taxes), duty, levy or fee, excluding those based on CMC’s net income, upon any transaction under this Agreement, Client agrees to pay that amount as specified in the invoice or supply CMC with exemption documentation. Client’s failure to pay according to the terms of this Agreement shall entitle CMC, without prejudice to its other rights and remedies under this Agreement, to charge interest on a daily basis from the original due date at the rate of the lesser of 1.5% per month or the maximum amount permissible by law, suspend the provision of Services, or both. Client shall reimburse CMC for all reasonable costs incurred by CMC in collecting past due amounts, including wire transfer fees, collection agency fees, reasonable attorney’s fees and court costs. Unless otherwise specified in the Sales Quote, CMC may increase recurring charges for Products and Services (including hourly rates) under the Sales Quote by giving Client thirty (30) days’ written notice, and such increase will apply on renewal of the Sales Quote.
5.1. Work Product Ownership and License. CMC may deliver Work Product to Client under the Sales Quote. CMC shall identify in the Sales Quote the Work Product to be delivered to Client as “Type A Work Product” or “Type B Work Product.” If not specified, Work Product shall be considered “Type B.” Type A Work Product is that Work Product created during the Sales Quote performance period in which Client shall have all right, title and interest, including ownership of copyright. CMC shall retain one copy of all Type A Work Product and Client grants CMC an irrevocable, nonexclusive, worldwide, paid-up license to create derivative works based upon such Type A Work Product and to use, execute, reproduce, display, perform and distribute copies of such Type A Work Product and derivative works including the right to authorize others to do any of the foregoing. To the extent that Pre-existing Work Product is embedded in any Type A Work Product, CMC shall not be deemed to have assigned its intellectual property rights in such Pre existing Work Product to Client, but CMC hereby grants to Client an irrevocable, perpetual, nonexclusive, worldwide, paid-up license to use, execute, reproduce, display, perform and distribute such Pre-existing Work Product as and to the extent necessary for Client to achieve the full benefit of its ownership rights in the Type A Work Product owned by Client. Type B Work Product is that Work Product created during the Sales Quote performance period or otherwise (which may include Pre-existing Work Product) in which CMC or third parties shall retain all right, title and interest, including ownership of copyright. CMC shall deliver one copy of all Type B Work Product to Client and CMC grants Client an irrevocable, nonexclusive, worldwide, paid-up license to use, execute, reproduce, display, perform and distribute copies of such Type B Work Product for Client’s internal use, including the right to authorize others to do any of the foregoing on Client’s behalf.
5.2. To the extent all or any portion of the Work Product may not, by operation of law, be owned by the party to which ownership is granted in this Section (the “Owner”), the other party hereby assigns, without further consideration, ownership in such Work Product to such Owner. Client and CMC each agree to reproduce the copyright notice and any other legend of ownership on the original and any copies made under the licenses granted in this Section 5.
All information exchanged is non-confidential. If either party requires the exchange of confidential information, it must be made under a separate signed confidentiality agreement.
CMC warrants that each Service will be performed using reasonable care and skill and according to its current description (including any completion criteria) contained in the Sales Quote, and CMC provides each CMC Product subject to the warranty terms (if any) contained in the Sales Quote. These warranties are client’s exclusive warranties and replace all other warranties or conditions, express or implied, including, the implied warranties of merchantability and fitness for a particular purpose. Further, CMC does not warrant uninterrupted or error-free operation of any service, work product or CMC product or warrant, guarantee, or make any representations regarding the use, or the results of the use, of the services, work product or CMC products. Unless CMC specifies otherwise in the Sales Quote, CMC provides work product and non-CMC products “as is” without warranties of any kind. However, non-CMC manufacturers or suppliers may provide their own Product warranties to Client.
Regardless of the basis on which Client is entitled to claim damages from CMC (including fundamental breach, negligence, misrepresentation or other contract or tort claim), CMC is liable only for the amount of any actual direct damages, which amount shall be limited in the aggregate to the greater of $25,000 or the charges (in the case of recurring charges, up to a maximum of 6 months’ charges) actually paid by Client for the Product, Work Product or Service that is the subject of the claim. This limit also applies to any of CMC’s Affiliates, suppliers and subcontractors, and is the maximum for which CMC and its Affiliates, suppliers and subcontractors are collectively responsible. This limit does not apply to any damages for bodily injury (including death) and damage to real property and tangible personal property. In no event shall CMC, its Affiliates, suppliers or subcontractors be liable for (i) any third-party claims against Client for losses or damages (other than those under the immediately preceding sentence), (ii) loss of or damage to Client’s records or data or (iii) special, incidental or consequential damages (including lost profits or savings), even if they are informed of their possibility. These limitations shall apply notwithstanding the failure of the essential purpose of any limited remedy.
9.1. Personnel; Freedom of Action. Each party is responsible for the supervision, direction and control of its respective personnel. CMC reserves the right to determine the assignment of its personnel and CMC personnel shall not be restricted or prevented from performing services for others that are similar to the Services provided to Client. CMC may perform its obligations through its Affiliates or subcontractors selected by CMC; provided, however, that CMC shall not be relieved of its obligations under this Agreement by use of such Affiliates or subcontractors.
9.2. Compliance with Laws. Each party shall, at its own expense, comply with all laws relating to its obligations under this Agreement.
9.3. Parties Independent. In making and performing this Agreement, the parties act and shall act at all times as independent contractors and nothing contained in this Agreement shall be construed or implied to create an agency, partnership, employer and employee relationship or any form of fiduciary relationship between Client and CMC or between any party and any officer or employee of the other party.
9.4. No Third Party Beneficiaries. This Agreement does not create any benefits, rights, claims, obligations, or causes of action in, to, or on behalf of, any person or entity other than to CMC and Client under this Agreement, except as set forth in Section 8 (Limitation of Liability).
9.5. Publicity. CMC and Client shall obtain the other’s written consent before publicly using any advertising, written sales promotion, press releases or other publicity matters relating to this Agreement or in which the other’s name is used or may reasonably be inferred; provided, however, that CMC shall have the right to refer to Client and a factual description of the Products and Services provided under this Agreement and reproduce, publicly display, and otherwise use Client’s logo(s) in one press release announcing Client as an CMC Client and in CMC’s list of references, promotional materials (including CMC’s Web site), internal business planning documents, annual report to stockholders and whenever necessary to comply with generally accepted accounting principles or applicable laws.
9.6. Force Majeure. No delay or default in performance of any obligation by either party, excepting all obligations to make payments
hereunder, shall constitute a breach of this Agreement to the extent such default or delay is caused, directly or indirectly, by an event beyond the reasonable control of the party unable to perform, including fire, flood, earthquake, elements of nature, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, failure of the Internet or strikes, lockouts or labor difficulties.
9.7. Amendments and Waivers. Changes to this Agreement may be made only by a written amendment signed by both parties. Changes in any other form, including additional or different terms in any purchase order or other written communication from Client, are void. No approval, consent or waiver shall be enforceable unless signed by the granting party and any such approval, consent or waiver shall be effective only in the specific instance and for the specific purpose stated in such writing.
9.8. Severability. If any particular provision of this Agreement is adjudicated to be invalid or unenforceable, such provision shall be deemed amended to delete there from the portion thus adjudicated to be invalid or unenforceable and such provision shall otherwise remain in full force and effect.
9.9. Assignment. This Agreement may not be assigned, sublicensed or otherwise transferred, in whole or in part, by either party, whether by operation of law or otherwise, without the non-assigning party’s prior written consent, except that CMC may make a collateral assignment of its rights under this Agreement to its lenders from time to time and either party may assign this entire Agreement upon notice to the nonassigning party in instances in which such assignment is to an Affiliate or an entity that acquires all or substantially all of the business of the assigning party (or, in the case of CMC, a portion of CMC’s business), whether by merger, consolidation, or sale of assets, stock or other ownership interest. Any attempted assignment in violation of this Section will be void. Client agrees that all Products, Services and Work Product shall be used solely within Client’s business enterprise, and shall not be remarketed or leased to third parties.
9.10. Governing Law; Actions. All rights, duties and obligations arising from or relating in any manner to the subject matter of this
Agreement shall be governed by and construed under the laws of the State of New Hampshire applicable to agreements made and fully performed therein, without regard to its conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Neither party shall bring a legal action against the other relating to the subject matter of this Agreement more than 2 years after the cause of action arose. Nothing in this Agreement affects any statutory rights that cannot be waived or limited by contract under applicable law.
9.11. Notices. Except as otherwise specified in this Agreement, all notices, requests, consents, approvals and other communications (collectively, “Notices”) required or permitted under this Agreement must be given in writing by reputable overnight courier (for example, Federal Express), registered or certified first class mail, return receipt requested or confirmed facsimile transmission provided that any facsimile Notice must be followed the same day with a delivery of identical Notice by reputable overnight courier for next business day delivery. CMC and Client will provide Notices under this Agreement to the addresses set forth on the Sales Quote, provided that a copy of any termination, breach or default Notice provided by Client to CMC shall also be sent by the same means to CMC, LLC., Attn: Chris Mikolajewski, 155 Fleet Street, Portsmouth, NH 03801. If no Notice address is set forth on the Sales Quote, then the address for Notice purposes shall be the party’s last known address. Either party may substitute its address for Notice purposes by Notice given in accordance with this Section.
9.12. Cooperation. Client shall, at its own expense, provide CMC with all reasonable cooperation necessary or appropriate for completion of the Services, including (if necessary) providing access to properly equipped facilities and obtaining all Required Consents necessary for CMC to provide the Services. “Required Consents” are any consents or approvals required to give CMC the right or license to access, use, and/or modify any third party software, hardware or other products or information used by Client without infringing the ownership or license rights (including patent and copyright) of the providers or owners of such items. When CMC’s performance of the Services requires or is contingent upon Client’s performance of an obligation (including providing Required Consents, approval or notification or taking a recommended corrective action) under this Agreement or the Sales Quote, and Client delays or withholds its performance beyond the agreed time period (or beyond five business days, if a time period is not specified), CMC will be relieved of its obligation to perform such Services entirely or, if it is reasonable for CMC to perform once Client performs, until a reasonable period following Client’s performance of its responsibility.
9.13. Non-Solicitation. In the event the Sales Quote provides for Client’s purchase of Services, then this Section applies. During the term of the Sales Quote, and for one year following its expiration or termination, neither party, without prior written approval from the other party, shall, directly or indirectly, through an Affiliate or otherwise, solicit for employment or employ, or solicit for retention or retain as an independent contractor, the other party’s employees (or any individual employed by the other party at any time in the preceding six months) with whom such party had substantial contact in the course of performing its obligations under the Sales Quote. Neither the publication of classified advertisements in newspapers and periodicals of general circulation nor the consideration and hiring of persons responding to such advertisements shall be deemed a breach of this Section, unless the advertisement and solicitation is undertaken as a means to circumvent or conceal a violation of this provision and/or the hiring party acts with knowledge of this hiring prohibition.
9.14. General Interpretative Provisions. The term “including,” whenever used in any provision of this Agreement, means including but without limiting the generality of any description preceding or succeeding such term. Whenever reference is made in this Agreement to “days,” the reference means calendar days, not business days, unless otherwise specified. Each reference to a party shall include a reference to such party’s permitted successors and assigns. The headings of this Agreement are for reference only and shall not affect the meaning or interpretation of this Agreement. In each case in which a party’s approval or consent is expressly required under this Agreement, such party shall not unreasonably withhold, condition or delay such approval or consent unless the context clearly states otherwise.