This Services Agreement (“Agreement”) is made and entered into as of _________________,
2020 (the “Effective Date”) and is by and between , with a principal place of business at (hereinafter “Customer”), and SafePoint Scientific, LLC, with its business address of 148 Route 73, Suite 3, #273, Voorhees, NJ 08043 (hereinafter “Contractor”). Each individually referred to as “Party” or together as the “Parties”.
WHEREAS, Contractor provides calibration/qualification services for environmental monitoring systems and laboratory equipment; and
WHEREAS, Contractor is willing to provide such services to Customer in accordance
with the terms and conditions of this Agreement and corresponding Purchase Orders; and
WHEREAS, Customer wishes to engage Contractor, subject to the terms of this Agreement. NOW, THEREFORE, for good and valuable consideration contained herein, the
exchange, receipt and sufficiency of which are acknowledged, the Parties agree as follows:
Upon the terms and subject to the conditions set forth in this Agreement, Customer
hereby engages the Contractor to provide, and the Contractor agrees to perform, such services to
and for Customer as further described in any and all Purchase Order(s) issued in relation to the Services or otherwise agreed by Contractor for Customer (the “Services”). This Agreement together with the contents of any and all Purchase Order(s) shall constitute the entire agreement for the particular scope of Services. No amendment, modification or discharge of this Agreement shall be valid or binding unless set forth in writing and executed by both Parties, unless otherwise specified herein. To the extent that the terms of this Services Agreement and any Purchase Order conflict, the terms of this Services Agreement shall control.
2. Compensation and Payment.
(a) Customer shall pay Contractor in accordance with the terms set forth in each Purchase Order for the Services described therein (the “Services Fee”). The Services Fee shall be paid to Contractor promptly in accordance with the provisions of each Purchase Order. In the event that a Purchase Order does not specify any deadline for payment of a Services Fee, the Services Fee shall be due and paid within thirty (30) days of receipt of any invoice(s) from Contractor for the same.
(b) In addition to the Services Fee, Customer shall reimburse Contractor for all documented out of pocket expenses incurred by Contractor on behalf of Customer, provided that Contractor has obtained prior written approval from Customer to incur such expense(s). Chargeable expenses shall include, but not be limited to, Contractor’s reasonable travel expenses, along with associated meals and lodging, for performance of the Services. Contractor shall submit invoice(s) to Customer specifically describing the expenses, and attaching any associated receipts, within sixty (60) calendar days of such costs being incurred. Customer shall promptly pay said invoices within thirty (30) days of receipt, unless
reasonably disputed. Notwithstanding anything else contained herein, Customer understands and agrees that any and all products or equipment shipped to Customer shall be opened by Contractor’s personnel only and, furthermore, should Customer or any of its employees or agents open such products or equipment, Customer agrees that it shall be solely and completely liable for the costs related to any loss or damage of or to the same.
(c) Contractor shall at all times keep complete and accurate records of all fees, charges and expenses in connection with the Services provided to Customer.
3. Compliance with Government Regulations.
(a) Contractor represents and warrants that it will comply with all applicable laws and regulations, and shall procure and maintain all necessary authorizations, permits and licenses required for the performance of the Services contemplated under this Agreement.
(b) Contractor represents and warrants to Customer that Contractor is not presently under any loss or restriction of any professional license, nor of any related certifications, rights, or privileges. Contractor further certifies that it is not presently excluded, prohibited or restricted from participating in any program of the United States government. To the best of Contractor’s knowledge, no member, employee or agent of Contractor has been debarred, excluded, suspended or otherwise deemed ineligible by any regulatory authority to participate in any federal health care program, is the subject of any debarment, exclusion, suspension or ineligibility proceedings by any regulatory authority, or has been convicted of a criminal offense related to the provision of health care services. Contractor shall promptly notify Customer of any change in the truth of this foregoing, including becoming aware that it or its members, employees or agents have been debarred, excluded, suspended, convicted or the subject of any debarment, exclusion, suspension or other proceedings by any regulatory authority .
(c) Contractor represents that, in the course of providing Services under this Agreement, it will not be necessary to receive, and it will not receive, any protected health information (PHI) that is required to be safeguarded in accordance with the terms of the Health Insurance Portability and Accountability Act (“HIPAA”), and that it will not otherwise act as a “Business Associate” of Customer as that term is defined at 45 C.F.R. § 160.103. Nevertheless, in the event Contractor takes any action on Customer’s behalf or in the course of providing Services under this Agreement which causes it to create, receive, maintain or transmit any PHI or perform work that involves the disclosure of any PHI from Customer such that it acts as a Business Associate for Customer as defined by 45 C.F.R. § 160.103, Contractor agrees that it will comply, in all respects, with all applicable provisions of HIPAA and its corresponding regulations to maintain the confidentiality of such information, use and disclose PHI only as permitted for the performance of the Services performed for Customer or otherwise as required by law, or otherwise not use or further disclose PHI in a manner that would violate HIPAA or its regulations.
4. Term and Termination.
(a) The term of this Agreement shall commence on the Effective Date and shall remain in full force and effect until terminated by either Party, in writing, upon sixty (60) days’ advance written notice (the “Term”). Services shall commence and continue in accordance with the Term stated herein and the contents of any applicable Purchase Order(s).
(b) Upon termination of this Agreement pursuant to this Section 4, Contractor shall cooperate with Customer to provide for an orderly wind-down of the Services provided by Contractor hereunder. The Parties agree, however, that termination of this Agreement shall not, in any way, relieve Customer of its obligation to pay for the Services as stated in all Purchase Order(s) and/or otherwise invoiced.
(a) Contractor agrees to treat any trade secrets, confidential or proprietary information, and all tangible materials obtained from Customer or generated or created by Contractor as a direct and sole result of performing the Services under this Agreement, including, without limitation, confidential commercial, scientific, medical and technical information and data owned by Customer, as well as tangible materials (all such data, information and tangible materials together with any information derived therefrom, exclusive of research methodologies and computer software and code developed by Contractor unless specifically included, to be referred to herein as the “Confidential Material”), as the confidential and exclusive property of Customer.
(b) Contractor agrees that it will use any Confidential Material only to provide the Services and for no other purpose without the prior written consent of Customer, and that it will not disclose any of the Confidential Material to any third party without first obtaining the written consent of Customer. Contractor agrees to maintain in confidence all Confidential Material received by it and to limit disclosure of said Confidential Material to its employees or agents who have a need to know and who are bound by confidentiality obligations no less stringent than the confidentiality provisions under this Agreement. Contractor further agrees to advise any and all such employees of the confidential nature of Confidential Material and shall ensure that any party to which Confidential Material is disclosed shall abide by the provisions of this Agreement.
(c) The above provisions of confidentiality shall not apply to that part of the Confidential Material which Contractor is able to demonstrate by documentary evidence:
(i) was in Contractor’s possession prior to receipt from Customer or is developed independent from the Services performed; or
(ii) was in the public domain at the time of receipt from Customer; or
(iii) becomes part of the public domain through no fault of Contractor, its members, employees, agents, representatives or advisors; or
(iv) is lawfully received by Contractor from some third party having a right of further disclosure.
(d) In the event Contractor becomes requested or required by applicable law or any applicable governmental authority or regulatory body or any private litigant (by oral questions, interrogatories, request, demand or similar process) (collectively, the “Legal Process”) to disclose any Confidential Material, Contractor will, unless prohibited by law, provide Customer with prompt notice of such Legal Process and refrain from disclosing such information until Customer obtains, at its sole expense, a
protective order or other appropriate remedy or waives compliance with the provisions of this Section. In the event such protective order or other remedy is not obtained, or Customer waives compliance with the provisions of this Section in writing, Contractor shall disclose only that portion of the Confidential Material which is, on advice of Contractor’s counsel, legally required to be disclosed.
(e) Contractor agrees that upon termination or expiration of this Agreement or, at the request of Customer, it shall (and shall cause its members, employees, agents, representatives and advisors to) return to Customer all parts of the Confidential Material provided by Customer and return or destroy any copies thereof made by Contractor, its members, employees, agents or representatives.
(f) Contractor acknowledges that disclosure or distribution of the Confidential Material or use of the Confidential Material contrary to the terms of this Agreement may cause irreparable harm for which damages at law may not be an adequate remedy, and agrees that the provisions of this Agreement prohibiting disclosure or distribution of the Confidential Material or use contrary to the provisions hereof may be specifically enforced by a court of competent jurisdiction in addition to any and all other remedies available at law or in equity.
6. Data Ownership and Intellectual Property.
(a) Customer shall retain all right, title and interest in all data generated by Contractor related to Customer’s business during Contractor’s performance of the Services.
(b) Customer shall retain all right, title and interest in and to the Confidential Materials. Neither anything contained herein nor the delivery of any Confidential Material to Contractor shall be deemed to grant Contractor any right or licenses under any patents or patent applications or to any know-how, technology or inventions of Customer.
(c) In the event that Contractor conceives and/or reduces to practice inventions relating to any materials transferred to Contractor in the course of or in connection with the Services relevant to Customer’s business and not related to Contractor’s, the Parties hereto acknowledge and agree that Contractor hereby assigns and Customer shall retain all right, title and interest in and to such conception or invention, as well as any patents or other intellectual property rights relating thereto, and Contractor agrees to execute such documents and take such actions as Customer may reasonably request to vest more fully in Customer all such rights.
(d) Customer acknowledges that Contractor possesses certain inventions, processes, technology, know-how, trade secrets, improvements, other intellectual property and other assets, including, without limitation, those related to composition of matter, data collection, data management processes, laboratory analyses, analytical methods, procedures and techniques, computer technical expertise and software (including codes) which have been independently developed without the benefit of any information provided by Customer (collectively, the “Contractor Property”). All Contractor Property and improvements thereto are the sole and exclusive property of Contractor, and Customer shall have no right, title or interest therein.
Contractor may not publish any articles or make any presentations relating to the Services, or referring to data, information or materials generated as part of the Services, in whole or in part, without the prior written consent of Customer.
8. Independent Contractor Relationship.
(a) The Parties hereto are independent contractors and nothing contained in this Agreement shall be construed to place them in the relationship of partners, principal and agent, employer/employee or joint venturers. Both Parties agree that neither shall have power or right to bind or obligate the other, nor shall either hold itself out as having such authority.
(b) As an independent contractor, Contractor shall be responsible for maintaining all required and necessary insurances, including worker’s compensation insurance and, upon request, provide Customer with proof of such insurance in the form of a Certificate of Insurance.
9. Publicity; Terms.
(a) Except as required by law, neither Party shall use the name of the other Party nor of any employee of the other Party in connection with any publicity without the prior written approval of the other Party.
(b) Each of the Parties hereto agrees to maintain in confidence and not to disclose to any third party the terms of this Agreement without the prior written consent of the other Party hereto, except to employees, advisors and others on a need-to-know basis under circumstances that reasonably ensure the confidentiality thereof, or to the extent required by law.
(a) Contractor represents and warrants that it has the requisite skills and experience to perform the Services under this Agreement. Contractor shall reasonably re-perform Services not in compliance with this warranty at no additional cost to Customer.
(b) Contractor represents and warrants that it has disclosed to Customer all real or apparent conflicts of interest with Contractor’s obligations under this Agreement.
(c) Contractor represents and warrants that it will not use any Customer trademarks, service marks, trade names, logos, or other commercial or product designations for any purpose other than the Services specifically detailed herein.
11. Commitment to Non-Discrimination.
Contractor agrees that it will not discriminate against any individual on the basis of sex, race, color, creed, religion, gender, sexual orientation, gender identity or expression, national origin or ethnicity, ancestry, age, disability, handicap or perceived disability or handicap, genetic information, hair
style, pregnancy, marital or domestic partner status, military or veteran status, employment status, familial status, transgender status, gender dysphoria, status as a victim of domestic violence or as a victim of sex offenses or stalking, or any other characteristic protected by federal, state or local law in the performance of Services. Similarly, Customer agrees that it will not discriminate in any manner described above or otherwise prohibited by federal, state or local law against any individual assigned by Contractor to perform any Services under this Agreement.
(a) Contractor hereby agrees to indemnify, defend and hold Customer, its affiliates and their directors, officers, members, agents, employees, representatives and assigns, harmless from and against all liabilities, demands, damages, expenses and losses (including reasonable attorney’s fees and costs) arising out of: (i) any intentional or willful failure of any representation or warranty made by Contractor in this Agreement related to the Services; (ii) the intentional gross negligence, recklessness, or willful misconduct on the part of Contractor or its employees or agents in the performance of the Services; and (iii) infringement, misappropriation or other violation of a third party’s intellectual property rights. Notwithstanding the foregoing, Customer and Contractor agree that, in no event, shall Contractor be responsible to indemnify or defend Customer or any of its affiliates or their directors, officers, members, agents, employees, representatives and assigns of or from any losses whatsoever related to any equipment or system failure.
(b) Customer hereby agrees to indemnify, defend and hold Contractor, its affiliates and its members, agents, employees, representatives and assigns, harmless from and against all liabilities, demands, damages, expenses and losses (including reasonable attorney fees and costs) arising out of (i) any breach by Customer of or failure by Customer to perform any of its covenants or agreements contained in this Agreement; (ii) the negligence, recklessness, or willful misconduct on the part of Customer or its employees or agents; (iii) any infringement, misappropriation or violation of Contractor’s intellectual property rights; and/or (iv) any losses related to any equipment or system failure.
(c) For this indemnification to apply, the Party claiming indemnity (“Indemnitee”) must notify the indemnifying Party (“Indemnitor”) in writing within ten (10) business days after receipt of notice of any claim or lawsuit and must permit the Indemnitor’s authorized attorneys and personnel (at the indemnifying Party’s discretion and cost) to handle and control the defense of such claims or lawsuits, provided that such counsel is experienced in the subject matter of the dispute. The Indemnitor shall keep the Indemnitee fully informed as to all material developments and solicit and consider Indemnitee’s input on all material decisions. The Indemnitee agrees to fully cooperate and aid in such defense. The Indemnitee shall not settle any claim without the prior written consent of the Indemnitor, which consent may not be unreasonably withheld. The Indemnitor shall not settle any claim without the prior written consent of the Indemnitee to the extent that such settlement would require an admission of guilt of the Indemnitee or cause the Indemnitee to incur any liability or obligation.
13. Limitation on Damages.
(a) Notwithstanding anything herein to the contrary, no Party shall be entitled to recover hereunder any indirect, special, exemplary, punitive or consequential damages of any kind (regardless of
the characterization thereof) losses consisting of business interruption or lost profits, losses computed on a multiple of earnings, book value, discounted cash flow or other similar basis.
(b) Notwithstanding anything herein to the contrary, in no event will either Party’s liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the aggregate amounts paid or to be paid by Customer to Contractor pursuant to this Agreement.
14. Force Majeure.
No Party shall be liable hereunder if the Party is delayed, hindered in or prevented from the performance of any act or obligation required in this Agreement by reasons including but not limited to strikes, lockouts, labor disputes, embargoes, restrictive government or judicial orders or decrees, riots, insurrection, war, civil commotion, casualty, civil strife, acts of terrorism, acts of God, inclement weather, fires, floods, earthquakes, hurricanes, tornados, epidemics, pandemics, states of emergency, business shutdowns, quarantines, isolation orders, local disease outbreaks, public health emergencies, travel restrictions, stay-at-home orders or directives issued by federal, state or local governments or health authorities, other governmental regulations or controls, the unavailability of labor or materials to the extent beyond the control of the Party affected, and any and all other events, regardless of their similarity or dissimilarity to the foregoing list, deemed to render performance under the Agreement impossible or impracticable under the law (collectively, the “Force Majeure Events”). Where reasonable and practicable, any timelines affected by any Force Majeure Event shall be extended for a period equal to that of the delay and the fees and costs for such Services shall be adjusted upward to reflect reasonable increases resulting from the Force Majeure Event. Notice of the occurrence of a Force Majeure Event, its anticipated duration, and its anticipated effect on performance shall be provided to the other Party, where the same is not otherwise readily apparent and known to the other Party, within five (5) business days. Notwithstanding anything else contained in this Agreement, notice in conformance with this Section may be provided verbally or in writing.
15. Record Storage.
(a) During the Term of this Agreement, Contractor shall maintain all materials and all other data obtained or generated by Contractor in the course of providing the Services hereunder, including all computerized records and files, in a secure area reasonably protected from fire, theft and destruction. Contractor shall cooperate with any reasonable internal review or audit by Customer and make available to Customer for examination and duplication, during normal business hours and at mutually agreeable times, all documentation, data and information relating to a Project.
(b) At the expiration or termination of this Agreement and upon written instruction of Customer, all materials and all other data and information obtained or generated by Contractor in the course of providing the Services hereunder shall, at the option of Customer, be (i) delivered to Customer in such form as is then currently in the possession of Contractor, at Customer’s expense, (ii) retained by Contractor for Customer for a period of three (3) years, in a format (paper or electronic) determined by Contractor, or (iii) disposed of, at the direction and written request of Customer, unless such materials are otherwise required to be stored or maintained by Contractor as a matter of law or regulation (in
which event, Contractor may retain copies in any format deemed appropriate by Contractor of all such materials, data and information).
16. Governing Law/Jurisdiction.
This Agreement and the rights and obligations of the Parties hereunder shall be governed by the laws of the State of New Jersey, without reference to conflicts of laws principles. In the event any action shall be brought to enforce or interpret the terms of this Agreement, the Parties agree that such action will be brought in the Superior Court of New Jersey or the U.S. District Court for the District of New Jersey, to the extent that subject matter jurisdiction exists.
If any one or more provisions of this Agreement shall be found to be illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, provided the surviving agreement materially comports with the Parties’ original intent.
The obligations set forth in Sections 5, 6, 10, 11, 12 and 13 shall survive the termination of this Agreement regardless of the cause of the termination, as well as any provisions which by their intent or meaning are intended to survive including but not limited to payment obligations on the part of Customer.
Waiver or forbearance by either Party or the failure by either Party to claim a breach of any provision of this Agreement or exercise any right or remedy provided by this Agreement or applicable law, shall not be deemed to constitute a waiver with respect to any subsequent breach of any provision hereof.
This Agreement and any Appendix hereto may not be assigned by either Party without the prior written consent of the other Party, provided, however, the Parties may assign this Agreement and any related Purchase Orders to a successor to the Party’s business interests.
All notices, requests, consents and other communications required or permitted by this Agreement shall be in writing and shall be delivered by hand, first class mail, air courier, fax, email (fax and e-mail to be confirmed by mail or other permitted form of written notice permitted under this paragraph) or sent via registered or certified mail, to the Party for whom intended to the following address, or to such other address as either Party, by notice, may specify with respect to its own address:
If to Customer:
At the location and to the contact person listed above or on any relevant Purchase Order(s). If to Contractor:
SafePoint Scientific, LLC
148 Route 73, Suite 3
Voorhees, New Jersey 08043
Attention: Chad Amato
22. Entire Agreement.
This Agreement and its incorporated Purchase Order(s) represent the complete and entire understanding between the Parties regarding the subject matter hereof and supersede all prior negotiations, representations or agreements, either written or oral, regarding this subject matter.
IN WITNESS THEREOF, this Agreement has been executed by the Parties hereto through their duly authorized officers as of the date(s) set forth below.