EXHIBIT 10.94
This Consulting Services Agreement ("Agreement") is made between HEWLETT-PACKARD
COMPANY, a Delaware Corporation ("HP") and U.S. WIRELESS CORPORATION, a Delaware
corporation ("Customer"), as of July 27, 2000 ("Effective Date").
The purpose of this Agreement is to set forth the mutually agreeable terms and
conditions under which HP will perform Consulting Services and provide
Deliverables to Customer according to one or more Statements of Work.
1. DEFINITIONS
a) "Consulting Services" (sometimes referred to as the "Work") refers to
such activities as analysis, design, planning, development, consulting,
implementation, education, training and project management as described
in each individual Statement of Work. Consulting Services may also
include other types of services described more specifically in each
individual Statement of Work (as hereinafter defined).
b) "Deliverables" means the results of the Consulting Services provided by
HP to Customer as described in each Statement of Work. Unless otherwise
agreed in the Statement of Work or any ancillary agreements hereto or
thereto, the term Deliverables does not include custom hardware, for
which there is a separate agreement.
c) "Software" means one or more programs (including any associated
documentation) capable of operating on a controller, processor or other
hardware device.
d) "Statement of Work" means a document attached to this Agreement which
describes a specific project, engagement or assignment ("Project") for
which HP will provide Consulting Services to Customer. More than one
Statement of Work may be attached to this Agreement from time to time.
2. HP OBLIGATIONS
a) HP will comply with the general obligations specified below together
with any specific HP obligations described in a Statement of Work, in a
timely manner. HP will use reasonable commercial efforts to perform the
Consulting Services and provide the Deliverables specifically described
in one or more Statements of Work in accordance with the terms and
conditions of this Agreement. Customer and HP will sign a separate
Statement of Work for each Project that exceeds $10,000, which will be
incorporated by reference into this Agreement upon execution by the
parties. Each Statement of Work will: (i) be made in writing in the form
attached as Exhibit A, (ii) incorporate by reference this Agreement,
(iii) be numbered consecutively on a chronological basis, (iv) be
executed by authorized representatives of Customer and HP, and (v) be
considered an individual agreement separate from all other Statements of
Work. Individual Statements of Work should address at least the
following areas:
1. Project description
2. Price, payment and delivery schedules
3. Scope of Consulting Services
4. Acceptance criteria
5. Nature of Deliverables
6. Project coordination
b) For all Projects under a value of $10,000, Customer's purchase order
referencing this Agreement will constitute the applicable Statement of
Work upon acceptance by HP.
c) Unless otherwise agreed, Consulting Services will be performed during
HP's normal business hours.
d) HP will use reasonable commercial efforts to provide the Deliverables
and perform the Consulting Services in accordance with the delivery
schedule specified in each Statement of Work.
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e) HP may select qualified and reputable subcontractors to perform
Consulting Services and/or provide Deliverables. HP shall provide prior
notification of all proposed subcontractors, however, Customer reserves
the right from time to time at its discretion, to request that HP cease
utilizing or not retain any particular company or individual
subcontractor. All subcontractors shall be required to agree in writing
to the terms and conditions stated herein, and execute a separate
confidentiality agreement. With respect to subcontractors hired by HP,
they shall be paid by HP. All agreements between HP and entities or
subcontractors engaged by HP to perform any work or supply Deliverables
in connection with a Statement of Work shall be in writing, a copy of
which shall be provided to Customer with financial terms redacted as
deemed reasonably necessary or desirable by HP. HP shall coordinate all
Work to be performed, testing, inspections and progress reports with
Customer and its representatives as set forth in the applicable
Statement of Work.
f) HP will appoint a representative to supervise and coordinate HP's
performance of Consulting Services, who will provide professional and
prompt liaison with Customer, have the necessary expertise and authority
to commit HP, be available at all times, as reasonably necessary in
light of the requirements and schedules included as part of the
Statement of Work for a Project, (or designate an alternate with the
same level of authority in the event of unavailability caused by illness
or other valid reasons), and meet with the Customer's representative at
regular intervals to be agreed upon to review progress and resolve any
issues relating to the Consulting Services or Deliverables. HP may
change its representative at any time upon 30 days written notice to
Customer. Notwithstanding HP agrees not to change the representative if
it shall adversely impact the timely performance of the Consulting
Services, unless such change is the result of a force majuere event
including termination or serious illness of the HP representative, and
Customer shall not be required to incur any additional costs as a result
of this change.
g) Except as provided herein or unless otherwise agreed in a Statement of
Work, HP is not responsible for providing continuing support services
for any Deliverables.
3. CUSTOMER OBLIGATIONS
a) Customer will comply with the general obligations specified below
together with any specific Customer obligations described in a Statement
of Work, in a timely manner.
b) Customer acknowledges that HP's ability to deliver the Consulting
Services is dependent in part upon Customer's commercially reasonable
cooperation with HP, as well as the accuracy and completeness of any
information and data Customer provides to HP which is stated in the
Statement of Work as critical to the Project. Therefore, Customer will:
i. Provide HP with access to, and use of, information, data,
documentation, computer time, facilities, working space and office
services commercially reasonably necessary, in light of the
requirements and schedules included as part of the Statement of Work
for a Project.
ii. Appoint a representative who will provide professional and prompt
liaison with HP, have the necessary expertise and authority to
commit Customer, be available at all times, as reasonably necessary
in light of the requirements and schedules included as part of the
Statement of Work for a Project, when HP's personnel are at the
Customer's site (or designate an alternate with the same level of
authority in the event of unavailability caused by illness or other
valid reasons), and meet with the HP representative at regular
intervals to be agreed upon to review progress and resolve any
issues relating to the Consulting Services or Deliverables. Customer
may change its representative at any time upon 30 days written
notice to HP. Notwithstanding Customer agrees not to change the
representative if it shall adversely impact the timely performance
of the Consulting Services, unless such change is the result of a
force majuere event including termination or serious illness of
Customer's representative, and HP shall not be required to incur any
additional costs as a result of this change.
c) Customer will be responsible for maintaining an external procedure for
reconstruction of lost or altered files, data or programs to the extent
deemed necessary by Customer, and for actually reconstructing any such
materials.
d) Subject to the specific obligations of HP under a Statement of Work,
Customer will be responsible, upon receipt from HP, and at all times
thereafter, for the supervision, management and control of the
Deliverables and any results obtained from the Deliverables, including
without limitation all responsibility for maintenance of proper machine
configuration, audit controls, operating methods, error detection and
recovery procedures, back-up plans, security, insurance, maintenance and
all other activities necessary to enable Customer to use the
Deliverables.
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e) Except as expressly provided in this Agreement, and except for any
equipment supplied by HP which HP warrants is Year 2000 compliant,
Customer has sole responsibility to ensure that its information
technology environment is Year 2000 compliant. HP is not providing Year
2000 services (for example, Year 2000 assessment, conversion or testing)
under this Agreement. Customer acknowledges that HP will not be
responsible for failure to perform Consulting Services or supply
Deliverables under this Agreement, if such failure is the result,
directly or indirectly, of the inability of any products to correctly
process, provide or receive date data (i.e., representations for month,
day and year), and to properly exchange date data with the Deliverables
by HP under this Agreement.
4. PRICE AND PAYMENT
a) Prices for Consulting Services and Deliverables will be specified in
each Statement of Work. Prices contracted for in each Statement of Work
are valid for the period stated in the Statement of Work. Except as
stated in the Statement of Work, prices include all materials and labor
expenses, but do not include sales, use, service, value added or like
taxes, or customs duties. Such taxes and duties, when applicable, will
be added to HP's invoices.
b) HP will issue invoices in accordance with the payment schedule specified
in each Statement of Work. Charges for travel expenses may be invoiced
separately. All HP personnel shall comply with HP's policy for travel
and reimbursements for employees and contractors as attached in Exhibit
C. Customer will pay all invoices within 30 days from the date of
invoice, except where HP and Customer have entered into a financing
agreement, in which case, the terms and conditions of the financing
agreement shall be the controlling agreement and control all payments.
Subject to the terms and conditions of any financing agreement between
HP and Customer, HP may change credit terms prior to each individual
Statement of Work, upon reasonable notice at any time when, in HP's
commercially reasonable opinion, Customer's financial condition,
previous payment record, or the nature of Customer's relationship with
HP so warrants.
c) Should any undisputed invoiced amount due to HP, in an amount of not
less than $2,500, remain unpaid after 60 days from the date of invoice,
subject to the terms and conditions of any financing agreement between
HP and Customer, HP may terminate this Agreement pursuant to Section
13.b.2.
5. CHANGE ORDERS
a) "Change Order" means an agreed upon change or modification to the
Deliverables, Consulting Services or other material aspect of a
Statement of Work that complies with the requirements of Exhibit B.
Requests by Customer and recommendations by HP for Change Orders are
subject to the procedures set forth in Exhibit B, and will be made in
writing in the form attached to Exhibit B as Attachment B-1.
b) The Change Orders must be mutually agreed by the parties in accordance
with the procedures set forth in Exhibit B. Pending such agreement, HP
will continue to perform, and be paid as if such Change Order had not
been requested or recommended, unless the Customer requests HP to cease
performance pending the acceptance of the Change Order, provided that if
either party proposes a Change Order which, in the other party's
judgment, represents a material change in the Consulting Services or
Deliverables and such Change Order remains outstanding for 30 days or is
rejected by Customer, either HP or Customer will have the right to
terminate the affected Statement of Work pursuant to Section 13.b.2
below.
6. ACCEPTANCE
a) HP will provide notice to Customer when the Deliverables are ready for
acceptance testing. Acceptance of Deliverables will occur upon the
earlier of: i) the date of the successful completion of the acceptance
tests, in which the Deliverables conform in all material respects to the
acceptance criteria specified in the applicable Statement of Work; or
ii) the date that Customer uses any substantial part of the Deliverables
for any purpose other than performing acceptance tests. Consulting
Services which do not include acceptance requirements will be accepted
by Customer upon HP's performance of such Consulting Services.
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b) In the event that any Deliverable fails to conform in all material
respects to the acceptance criteria specified in the applicable
Statement of Work, HP will have a reasonable time, subject to the timing
requirements and schedules included as part of the Statement of Work for
a Project, to remedy such non-conformance, following HP's receipt of
written notice from Customer specifying in reasonable detail the nature
of such non-conformance. In the event that HP is unable to remedy the
non-conformance within the applicable schedule: i) Customer may accept
the Deliverable without warranty, on an "AS IS" basis, subject to a
reasonable price adjustment; or ii) Customer may return the Deliverable
to HP and receive a refund of amounts paid to HP for the Deliverable.
c) Acceptance will not be delayed for any minor non-conformance with the
requirements specified in any Statement of Work. Following acceptance,
HP will use reasonable commercial efforts to correct in a timely manner
any minor non-conformance that appears during acceptance testing.
d) If acceptance testing is delayed solely for reasons attributable to
Customer, acceptance will be deemed to occur thirty (30) calendar days
after written notice by HP that the Deliverable is ready for acceptance
testing.
7. WARRANTIES
a) HP will perform Consulting Services in accordance with generally
recognized commercial practices and standards. HP will re-perform, at
its own cost, any Consulting Services not performed in accordance with
the foregoing warranty, provided that HP receives notice from Customer
within 30 days after such Consulting Services were performed and
accepted pursuant to Section 6 above.
b) HP warrants that the Deliverables will in all material respects conform
to the acceptance criteria specified in the applicable Statement of Work
for a period of six (6) months from the date of acceptance.
c) HP does not warrant that the operation of Deliverables will be
uninterrupted or error free or conform to any reliability or performance
standards beyond those specified in the applicable acceptance criteria
in the Statement of Work. HP also does not warrant that Deliverables
will be compatible with future HP products or those of other vendors,
except as specifically stated or provided for in the Statement of Work.
d) If HP receives notice during the warranty period of any substantial
non-conformance with the acceptance criteria that impairs the
functioning of a Deliverable, HP will correct such non-conformance or if
Customer agrees in writing, to provide a work-around which remedies the
non-conformance.
e) If HP is unable within a reasonable time, in light of the requirements
and schedules included as part of the Statement of Work for a Project,
to comply with the foregoing obligations, HP will refund the price
stated in the Statement of Work of the part rendered unserviceable by
the defect not cured, upon prompt return of the affected Deliverable to
HP, and/or delivery to HP of proof of the destruction of the affected
Deliverable.
f) The warranties provided in this Section 7 will not apply to defects or
non-conformances to the extent the defects or non-conformances are
caused by one of the following events:
1. Unauthorized, improper or inadequate maintenance or calibration by
Customer or any third party.
2. Software, hardware, interfacing, or supplies not supplied by HP.
3. Unauthorized modification of Deliverables or any portion thereof.
4. Improper use or operation of Deliverables or any portion thereof or
Customer's failure to comply with the applicable environmental
specification.
5. Improper site preparation or maintenance by Customer or a third
party.
g) THE ABOVE WARRANTIES ARE EXCLUSIVE AND NO OTHER WARRANTY, WHETHER
WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. HP SPECIFICALLY DISCLAIMS
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
8. LICENSES
a) Unless otherwise agreed in writing, when HP supplies Customer with a
Deliverable that in whole or in part consists of Software (sometimes
referred to in Sections 8 and 9 as a "Software Deliverable"), such
Software Deliverable will be supplied in object code form only, with
appropriate application program interfaces, when applicable, as defined
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in a Statement of Work. If specified in a Statement of Work, HP shall
grant Customer a non-exclusive, worldwide, royalty-free, perpetual,
fully paid license to use source code to the extent necessary for
Customer's use of the Deliverable in its ordinary business operations.
b) Notwithstanding the foregoing, HP may include in the Deliverables
certain general programs, routines, or other intellectual property
previously developed by HP. Upon Customer's acceptance of a Deliverable
and receipt by HP of the associated payment in full, HP shall and
hereby does grant Customer a non-exclusive, worldwide, royalty-free,
perpetual, fully paid license to use such Deliverable, including HP's
pre-existing copyrighted works or other intellectual property rights,
to the extent necessary for Customer's use of the Deliverable in its
ordinary business operations. Customer shall be allowed to assign to
its "Affiliates," its successors in interest and its joint venture
partners the right to use the Deliverables, subject to the license
terms herein provided. For the purposes hereof, an "Affiliate" shall
mean any entity or company (i) that Customer wholly-owns or has the
power to control or (ii) that controls Customer; or (iii) that is under
the same control as Customer. "Control" shall mean ownership or power
to exercise control of fifty percent (50%) or more of the controlled
entity's voting stock.
c) Unless otherwise authorized by HP, Customer may only make copies of
Deliverables for archival purposes, or when copying is an essential step
in the authorized use of a Software Deliverable on a backup controller,
processor or other hardware device.
d) Customer will label each copy of Deliverables made under Section 8.c
above with the copyright notice that appears on the original.
e) Except as provided herein or in a Statement of Work, Customer will not
market, sublicense or otherwise provide the original, any part of the
original, any copy or partial copy, or any derivative of a Deliverable
to any third party.
f) Except as provided in the Statement of Work, Customer's license does not
include the right to updates, upgrades or other enhancements to a
Deliverable.
g) Customer will not disassemble or decompile any Software Deliverable
without HP's prior written consent. Where Customer has other rights
under statute, Customer will provide HP with reasonably detailed
information regarding any intended disassembly or decompilation.
Customer will not decrypt any Software Deliverable unless necessary for
legitimate use of the Deliverable.
h) HP may terminate Customer's license in any Deliverables for failure to
comply with Section 8 of this Agreement or, upon prior written notice,
for failure to pay for the Deliverables. However, termination of
Customer's license for failure to comply with Section 8 of this
Agreement shall occur only after HP has notified Customer of Customer's
failure to comply with Section 8 of this Agreement and given Customer
seventy-two (72) hours after such notice to cure Customer's failure to
comply. In the event of termination of Customer's license, Customer will
immediately destroy or return to HP the affected Deliverable and all
partial or complete copies, or provide satisfactory evidence of their
destruction to HP.
i) If a Statement of Work requires HP to incorporate any Customer
intellectual property and therefore HP requires the use of same,
Customer shall grant HP a non-exclusive, worldwide, royalty-free license
to use and copy Customer's pre-existing copyrighted works or other
intellectual property rights only to the extent Customer deems necessary
for HP to perform its obligations under this Agreement and a specific
Statement of Work. Unless otherwise agreed, the license shall terminate
immediately upon completion of Consulting Services as provided in the
Statement of Work, whereby, HP shall return all copies of the
copyrighted works or other intellectual property rights received.
9. INTELLECTUAL PROPERTY RIGHTS
a) All copyrights and other intellectual property rights existing prior to
the Effective Date will belong to the party that owned such rights
immediately prior to the Effective Date.
b) Neither party will gain by virtue of this Agreement any rights of
ownership of copyrights, patents, trade secrets, trademarks or any other
intellectual property rights owned by the other, except for the license
rights referenced in Section 8 above.
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c) HP will own all copyrights, patents, trade secrets, trademarks and other
intellectual property rights, title and interest in or pertaining to all
Works (including computer programs, Deliverables and Software
Deliverables) developed by HP for purposes of this Agreement.
d) Notwithstanding anything to the contrary in this Agreement, any
invention developed through this Agreement which is specificly designed
by HP, but excluding HP's pre-existing or separately developed
Intellectual Property, for the Customer's RadioCamera location system,
its location network, its use and/or its integration, shall be and is
solely owned by Customer. In no event will HP be precluded from using
any non-tangible ideas, concepts, know-how and techniques developed
under this Agreement.
10. INTELLECTUAL PROPERTY INDEMNITY
a) HP will defend or settle any claim against Customer, its officers,
directors, employees, affiliates, successors in interest and joint
venture partners regarding the Consulting Services and/or the
Deliverables, to the effect that HP, its services and/or the
Deliverables infringed a patent, utility model, industrial design,
copyright, trade secret, mask work or trademark in the country where
such Deliverables are used or such Consulting Services are provided.
b) The indemnities provided in Section 10.a above will apply provided
Customer agrees to promptly notify HP in writing of the claim, and
Customer agrees to cooperate with HP in and grants HP sole control of
the defense or settlement, provided however that HP shall not enter into
any settlement that adversely affects Customer's business operations and
use of the Deliverable, or obligates Customer to take any action or
incur any expense without Company's prior written consent, and further
provided that Customer shall, at Customer's expense, have the right to
be represented by independent counsel of its own choosing in connection
with such claim.
c) For infringement claims covered by this Section 10, HP will pay
infringement claim defense costs, settlement amounts and court-awarded
damages. If such a claim regarding a Deliverable appears likely, HP, at
its own cost, may modify the Deliverable, procure any necessary license
or replace it. If the parties determine that none of these alternatives
is reasonably available, HP will refund Customer's purchase price upon
return of the Deliverable if within one year of delivery. If after the
one year period, the refund of Customer's purchase price will be reduced
by 20% per year.
d) HP has no obligation for a claim of infringement, to the extent such
infringement arises from:
1. HP's compliance with or use of Customer's information, technology,
designs, specifications or instructions, including those
incorporated into any Statement of Work.
2. Modification of a Deliverable by Customer or a third party
consistent with the purposes for which the Deliverable was provided.
3. Use of a Deliverable in a way notindicated in a Statement of Work.
4. Use of a Deliverable with products not supplied by HP.
e) This Section 10 states HP's entire liability for claims of intellectual
property infringement.
11. CONFIDENTIAL INFORMATION
This Agreement incorporates by reference the Non-Disclosure Agreement
("NDA") between Customer and HP. If a conflict arises between this
Agreement and the NDA, the NDA shall govern all matters of confidentiality
and this Agreement shall govern all other matters. Should the NDA be
terminated while this Agreement is in effect, the NDA's obligations shall
survive and shall continue to govern confidentiality matters of this
Agreement. HP acknowledges that all employees, and subcontractors are
required to execute an NDA before commencing any work for HP.
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12. REMEDIES AND LIABILITIES
a) The remedies in this Agreement are Customer's sole and exclusive
remedies.
b) To the extent HP is held legally liable to Customer, HP's liability is
limited to:
1. Payments described in Sections 6, 7, and 10 above, this Section 12,
and Section 13.d below.
2. Damages for bodily injury.
3. Direct damages to tangible property up to a limit of U.S. $1,000,000.
4. Other direct damages for any claim based on a material breach of any
other term of this Agreement, up to a maximum of $1,000,000 or the
amounts paid to HP under this Agreement, whichever is less.
c) Notwithstanding Section 12.b above, in no event will HP or its
affiliates, subcontractors and suppliers be liable for any of the
following:
1. Actual loss or direct damage that is not listed in Section 12.b
above.
2. Damages for loss of data, or Software restoration.
3. Damages relating to Customer's procurement of substitute products or
services (i.e., "cost of cover").
4. Incidental, special or consequential damages, including downtime
costs or lost profits but excluding damages for bodily injury and
payments described in Section 10.c above.
d) The Deliverables are not specifically designed, manufactured or intended
for sale as parts, components or assemblies for the planning,
construction, maintenance, or direct operation of a nuclear facility.
Customer will be solely liable if any Deliverables purchased or licensed
by Customer are used for these applications. Customer will indemnify and
hold HP harmless from all loss, damage, expense or liability in
connection with such use.
13. TERM AND TERMINATION
a) This Agreement will commence on the Effective Date and will continue in
force until termination according to the terms of this Agreement.
Individual Statements of Work will be effective upon execution by both
parties and will continue in force until both parties have fulfilled all
of their Project obligations, or until the earlier termination of such
Statement of Work according to the terms of this Agreement or the
Statement of Work.
b) This Agreement or an individual Statement of Work may be terminated
immediately upon notice in writing:
1. By either party if the other party is in material breach of any of
its obligations hereunder and fails to remedy such breach within 30
days of receipt of a written notice by the other party which
specifies the material breach.
2. By either party, in the absence of mutual agreement regarding a
Change Order which represents a material change under Section 5.b,
or if Customer fails to pay any sums due under this Agreement within
the 60 day time period specified in Section 4.c.
3. By either party if the other party has a receiver appointed, or an
assignee for the benefit of creditors, or in the event of any
insolvency or inability to pay debts as they become due by the other
party, except as may be prohibited by applicable bankruptcy laws.
c) Either party may terminate this Agreement for convenience upon 30
days prior written notice to the other party. Any termination of
this Agreement will not relieve either party of its obligations
under any Statement of Work in effect
on the date of termination of this Agreement, unless otherwise mutually
agreed to in writing.
d) Upon termination of any Statement of Work, Customer will pay HP for all
Work performed and charges and expenses incurred by HP up to the date of
termination, and Customer will receive all work in progress for which
Customer has paid. Should the sum of such amounts be less than any
advance payment received by HP, HP will refund the difference within 30
days of receipt of an invoice from Customer.
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e) Sections 4, 7, 8, 9, 10 and 12 above, and Section 14 below, will survive
termination of this Agreement.
14. GENERAL
a) Standard Products. This Agreement does not cover standard HP hardware
and software products sold or licensed to Customer. Any such
transactions will be governed by the terms of Customer's HP purchase
agreement or, in the absence of a signed purchase agreement, HP's Terms
and Conditions of Sale and Service (Exhibit E16).
b) Health and Safety. HP and any of its subcontractors will, when at the
Customer's site, conduct their activities so that their equipment,
working conditions and methods are safe and without risk to health for
their own and Customer's employees as well as for any other users of the
Customer's site.
c) Non-Restrictive Relationship. HP may provide the same or similar
Consulting Services and Deliverables to other customers.
d) No Publicity. Neither party will publicize or disclose to any third
party without the consent of the other party, either the price or other
terms of this Agreement or the fact of its existence and execution,
except as may be necessary to comply with other obligations stated in
this Agreement.
e) No Joint Venture; Employment Issues. Nothing contained in this Agreement
will be construed as creating a joint venture, partnership, agency or
employment relationship between the parties hereto, nor will either
party have the right, power or authority to create any obligation or
duty, express or implied, on behalf of the other. HP will provide
services under this Agreement solely as an independent contractor and
HP's employees will not be considered or deemed employees of Customer
for any purpose whatsoever. HP shall assume full responsibility for its
employees and shall comply with all applicable laws governing
employment, including but not limited to those governing employment
discrimination and immigration, and shall provide all required
insurance, including but not limited to workers' compensation insurance.
HP shall indemnify and hold Customer and its officers, directors and
employees harmless from any and all losses, claims, costs, liabilities
or expenses arising from HP's failure to comply with any provision of
this paragraph 14(e) as it relates to employment issues.
f) No Assignment. Except with respect to HP's rights regarding the use of
subcontractors, and except as provided in this Agreement, neither party
may assign any rights or obligations under this Agreement or any
Statement of Work without the prior written consent of the other party.
g) Export Administration Regulations. If Customer exports any Deliverable
outside the country in which the Deliverable is delivered to Customer,
Customer assumes responsibility for complying with applicable laws and
regulations and for obtaining required export and import authorizations.
Customer will not export or re-export any technical data in violation of
U.S. Export Administration regulations or other applicable export
regulations. If any Deliverable is required to be exported outside the
United States, HP assumes responsibility for complying with applicable
laws and regulations and for obtaining required export and import
authorizations. HP will not export or re-export any technical data in
violation of U.S. Export Administration regulations or other applicable
export regulations.
h) Force Majeure. Neither party will be liable for performance delays or
for non-performance due to causes beyond its reasonable control.
i) Notices. All notices required under or regarding this Agreement or any
individual Statement of Work will be in writing and will be considered
given upon personal delivery of a written notice to the HP
representative or Customer representative designated in the Statement of
Work, or within five days of mailing, postage prepaid and appropriately
addressed.
j) Waiver. Neither party's failure to exercise any of its rights under this
Agreement will constitute or be deemed a waiver or forfeiture of those
rights.
k) Severability. If any term or provision of this Agreement is held to be
illegal or unenforceable, the validity or enforceability of the
remainder of this Agreement will not be affected.
l) Exhibits. The following documents are attached hereto as exhibits,
the terms of which are incorporated by reference in their entirety:
A Statement of Work (and all subsequently executed Statements of Work)
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B Change Order Procedures
C Non-Disclosure Agreement
m) Precedence. In the event of conflict between the provisions of this
Agreement and any attached exhibit or Statement of Work, the provisions
of this Agreement will to the extent of such conflict take precedence.
n) Entire Agreement. This Agreement and its exhibits and Statements of Work
constitute the entire agreement between HP and Customer and supersede
any prior or contemporaneous communications, representations or
agreements between the parties, whether oral or written, regarding the
subject matter of this Agreement. Customer's additional or different
terms and conditions will not apply. The terms and conditions of this
Agreement may not be changed except by an amendment signed by an
authorized representative of each party.
o) Applicable Law; Venue; Dispute Resolution. This Agreement is made under
and will be construed in accordance with the law of California without
giving effect to that state's choice of law rules. All legal actions
arising under this Agreement shall be initiated and maintained in Contra
Costa County, California; provided however, that such actions may be
initiated and maintained in either state or federal court.
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<CAPTION>
<S> <C>
AGREED TO: AGREED TO:
Customer: ___________________________________ HP: ______________________________________
Authorized Representative Signature Authorized Representative Signature
Name: Name: Cheryl L. King
Title: Title: Contracts Consultant
Address: ______________________________________ Address: Hewlett-Packard Company
______________________________________ 8000 Foothills Blvd., M/S 5520
______________________________________ Roseville, CA 95747
______________________________________ 916-785-6755
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