Submission Materials & Services: GLI shall provide the services to Client as described in and in accordance with this Agreement (the “Services”).
Client must provide GLI all necessary documentation, credentials, information, software, code and hardware (“Submission Materials”) and technical support and access to perform the work, including assistance with installation and configuration of Submission Materials. Client shall supply any specialized environment, tools or equipment necessary for GLI to perform the services. Lack of sufficient product information, access and technical support may lead to increased time and costs for the Services.
Client hereby represents and warrants that Client is the owner and/or authorized user of all Submission Materials and has all rights, licenses and authority necessary to disclose, deliver and supply all Submission Materials to GLI to enable performance of the Services.
Any source code submitted by Client as part of the Submission Materials for assessment must be a true, complete and accurate replication of the software that will be utilized in the field or in any commercial product and GLI shall not be responsible if source code submitted to GLI deviates from the software used in the field or any commercial product.
GLI will return Submission Materials upon Client’s written request. If Client submits such a written request for return of Submission Materials before the Services are completed, GLI may be unable to complete the Services and this shall not render the Deposit refundable. GLI is not and will not be treated in any event as an escrow agent for any Submission Materials. Client shall keep copies of all Submission Materials. Following completion of the Services, GLI is not required to maintain, retain or preserve Submission Materials or make determinations regarding rightful ownership. GLI may, in its sole discretion, return or destroy Submission Materials at any time after the completion of Services.
Invoicing: Client shall reimburse GLI for all reasonable travel costs (air, ground travel, accommodations, meals and incidentals) related to this Agreement as set forth in the Proposal. Any quoted fixed cost does not include these expenses.
If GLI resources must work more than eight (8) hours per day to meet Client requests, GLI may charge additional fees.
Client shall pay GLI invoices within 30 days after the invoice date. If invoices are not timely paid in full, Client shall also pay GLI a late charge equal to one and a half percent (1.5%) of the outstanding balance which shall accrue on any outstanding balance that remains unpaid after the expiration of a 30-day period and Client shall pay the one and a half percent (1.5%) late charge monthly thereafter until all amounts due are paid.
Delays and Project Changes Notices: GLI is not responsible for any delay in the Services or its issuance of the Report if the delay is caused either in whole, or in part, by Client, Client’s affiliates, or their respective agents or contractors or if the delay is out of GLI’s reasonable control, which includes but is not limited to: (i) Client’s requests for changes in scope or any change order or PCN, (ii) Client’s failure to timely submit and provide full access to all Submission Materials, or Client’s provision of insufficient or inadequate Submission Materials or technical support, (iii) Client’s requests for additional assessments, reports or other correspondence, (iv) change in Client systems architecture, hardware, software, source code or other Submission Materials, or (v) unusually complex projects or Submission Materials, as determined by GLI based upon its experience with proposals comparable to the Proposal.
If either Client or GLI wishes to change the scope or performance of the Services, the requesting party shall submit details of the requested change to the other party in writing as a project change notice (a “PCN”). The PCN must contain a detailed description of all requested changes to the original scope or performance and cost. After receipt of the PCN, the parties shall negotiate in good faith and, if the parties are able to agree in writing on any terms of PCN, then the PCN shall become effective and all other original Agreement terms shall remain effective. Each PCN agreed upon by the parties in writing shall be incorporated into, and become a part of, this Agreement and shall be governed by the provisions of this Agreement. If the parties are unable to agree upon a PCN the Agreement shall remain unchanged.
Warranty and Limitation of Liability: GLI WARRANTS THAT THE SERVICES SHALL BE PERFORMED BY GLI WITH REASONABLE SKILL AND CARE. GLI MAKES NO OTHER REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
THE SERVICES INVOLVE SOLELY GLI’S CRITICAL ASSESSMENT OF THE FEATURES OF THE SUBMISSION MATERIALS INDICATED IN THE SCOPE OF WORK IN THE PROPOSAL, BUT DO NOT INCLUDE ANY VERIFICATION, CERTIFICATION OR ASSURANCE OF ANY KIND THAT THOSE FEATURES, OR ANY OF THE SUBMISSION MATERIALS, CONFORM TO OR COMPLY WITH ANY TECHNICAL, LEGAL, REGULATORY OR OTHER STANDARD IN ANY JURISDICTION. GLI DOES NOT GUARANTEE OR WARRANT THE EFFICACY OF ASSESSED FEATURES OR THAT THE SUBMISSION MATERIALS WILL BE FREE FROM LIMITATIONS, WEAKNESSES, ERRORS, FAULTS, OR DEFECTS. WHILE GLI’S ASSESSMENT WILL BE CONDUCTED AND PREPARED WITH REASONABLE SKILL AND CARE, SUCH ASSESSMENT WILL NECESSARILY BE SUBJECT TO AND LIMITED BY VARIOUS ASSUMPTIONS, CONSTRAINTS AND DEPENDENCIES, INCLUDING THE QUALITY OF SUBMISSION MATERIALS AND OTHER INHERENT LIMITATIONS OF SIMILAR THIRD-PARTY ASSESSMENTS OF SOFTWARE PRODUCTS. ACCORDINGLY, GLI DOES NOT GUARANTEE OR WARRANT THAT ITS REPORT AND THE FINDINGS OF ITS ASSESSMENT OF THE FEATURES WITHIN THE SCOPE OF WORK WILL IDENTIFY ALL RELEVANT LIMITATIONS, WEAKNESSES, ERRORS, FAULTS OR DEFECTS,
IN NO EVENT SHALL GLI BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT GLI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOT WITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. CLIENT WAIVES AND RELEASES ANY RIGHT TO CLAIM ANY OF THE FOREGOING AGAINST GLI AND ITS AFFILIATES.
IN NO EVENT SHALL (i) ANY CLAIM FOR BREACH OF WARRANTY UNDER THIS AGREEMENT BE BROUGHT AFTER THE FIRST ANNIVERSARY OF THE DATE OF GLI’S REPORT ISSUED UNDER THIS AGREEMENT, OR (ii) GLI’S AGGREGATE 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 FIXED COSTS PAID OR PAYABLE TO GLI FOR THE SERVICES. CLIENT WAIVES AND RELEASES ANY RIGHT TO PURSUE GLI OR ANY OF ITS AFFILIATES BEYOND THE LIMITS IN THE PRECEDING SENTENCE. IF CLIENT BRINGS ANY VALID CLAIM OR COMPLAINT FOR BREACH OF WARRANTY, GLI SHALL HAVE THE OPTION TO REPERFORM THE SERVICES AND REISSUE ITS REPORT WITH CLIENT’S COOPERATION OR TO REFUND THE FIXED COSTS PAID BY CLIENT.
Client shall indemnify, hold harmless and defend GLI, its affiliates and their respective managers, members, officers, directors, employees, agents, successors, and assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, that are incurred by GLI arising out of or related to: (a) any third-party claim that any of the Submission Materials infringe the rights of a third party or that Client was not authorized to disclose any of the Submission Materials to GLI, (b) Client’s breach or non-fulfillment of any provision of this Agreement, including bringing any claims against GLI or its affiliates prohibited by the preceding paragraph; (c) Client’s negligence, gross negligence, willful misconduct, misrepresentation, or bad faith acts or omissions; (d) Client’s failure to comply with any federal, state, provincial, or local laws, regulations, or codes in performance with its obligations under this Agreement; (e) Client’s disclosure or use of GLI’s Report or findings resulting from the Services in an manner not authorized by this Agreement; or (f) any virus, bug, trojan horse malware, worms, spyware, ransomware or similar disruptive or destructive code or attributes in the Submission Materials.
GLI Intellectual Property: GLI and its licensors are and shall remain the sole owners of all right, title, and interest in an and to GLI’s Intellectual Property, including GLI’s know-how, processes, assessment methods, procedures, assessment software, and all Intellectual Property rights in and related thereto (collectively, “GLI Intellectual Property”). Client is not being granted any license or right in or to GLI Intellectual Property and shall not make any contrary claim or take any inconsistent action. All such rights in and to GLI Intellectual Property are solely reserved to and for GLI. Client may provide suggestions or other feedback to GLI with respect to the Services. GLI may use such suggestions or other feedback for any purpose, including developments or improvements to the GLI Intellectual Property, without notice or obligation of any kind, and without impairing or limiting GLI’s sole ownership of and rights to the GLI Intellectual Property. Accordingly, Client hereby assigns to GLI all right title, and interest in any such suggestions or other feedback (and any interest in related developments or improvements which might accrue), including all Intellectual Property in and related thereto and resulting therefrom. “Intellectual Property” means any and all of the following in any jurisdiction throughout the world and all rights in, arising out of, or associated therewith: (a) patents, utility models, and applications therefor, and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations and continuations-in-part thereof, and equivalent or similar rights anywhere in the world in inventions and discoveries, including invention disclosures; (b) all trade secrets, inventions (whether or not patentable and whether or not reduced to practice), and other rights in know-how and confidential or proprietary information; (c) all mask works, works of authorship and copyrights, registrations and applications therefor, and all other rights corresponding thereto (including moral rights), throughout the world; (d) rights in software (including without limitation APIs, source code, object code, and mark-up language); (e) rights of publicity, personality, identification, or similar personal or group attributes; (f) trade names, logos, common law trademarks and service marks, trade dress, trademark and service mark registrations, and applications therefor and any goodwill associated therewith; and (g) any similar, corresponding, or equivalent rights to any of the foregoing and any other intellectual property or proprietary rights throughout the world.
Client shall maintain and reproduce all copyright, patent, trademark and other notices, including, without limitation, any disclaimers, on all copies, in any form, of the Report in the same form and manner that such copyright and other notices are included on the Report. Except as expressly authorized in this Agreement, Client shall not (i) make any copies or duplicates of the Report or any portion thereof without the prior written permission of GLI, (ii) deliver the Report to any person or entity other than its affiliates, (iii) permit any person or entity other than its affiliates to review or rely upon the Report.
Confidential Information: Any confidentiality agreement between the Parties is incorporated by reference. In the event there is no confidentiality agreement the parties agree as follows:
“Confidential Information” shall mean, subject to the following paragraph, all technical and non-technical information provided by either Party including, but not limited to, information concerning research, development, data, engineering, financial information, assessment methods, procurement requirements, purchasing, product lists, product specifications, production processes and techniques, supplier lists, forecasts, merchandising and marketing plans if such information: (a) is marked “confidential” or “proprietary” itself or by an accompanying contemporaneous written communication, or (b) is designated confidential or proprietary by written or electronic communication within ten (10) days following disclosure, or (c) is information that, under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary.
Confidential Information shall not include: (a) information that was in the public domain at the time of its disclosure, or that becomes public domain property through no fault of the recipient; (b) that was rightfully in the recipient’s possession without any obligation of confidentiality prior to disclosure by the disclosing party; (c) that is independently developed by the recipient without use of or reference to the disclosing party’s otherwise Confidential Information, or (d) that is received by the recipient from a source independent of the disclosing party that is not under an obligation of confidentiality with respect to such information.
Each party may disclose its Confidential Information to the other party and the party receiving the disclosing party’s Confidential Information shall: (a) not use the disclosing party’s Confidential Information except for performance of its rights and obligations under this Agreement; (b) use the same degree of care, but not less than a reasonable degree of care, in protecting the disclosing party’s Confidential Information from unauthorized use or publication as it uses to protect its own confidential information; (c) except as necessary to perform the Services, not reverse engineer, disassemble or decompile the disclosing party’s Confidential Information; and (e) not disclose to any third party or copy any of the disclosing party’s Confidential Information without the disclosing party’s prior written consent, except that recipient may disclose Confidential Information (i) to its employees, contractors or professional advisors PROVIDED: (A) said persons have a need to know such Confidential Information; and (B) said persons have a bona fide business purposes for disclosure of such; and (ii) as permitted by the remainder of this Confidential Information Section.
Confidential Information by such person inconsistent with the terms of this Agreement shall be a breach of this Agreement for which the recipient shall remain liable; and each such individual is under binding obligations of confidentiality to recipient or the disclosing party with respect to such Confidential Information no less restrictive than this Agreement. This Agreement shall not be construed to prohibit a disclosure of Confidential Information by the recipient to the extent such disclosure is required under applicable law, as required to do so by regulatory agencies, or by order of a court of law or pursuant to a subpoena or other valid legal request or demand, provided that the recipient gives to the disclosing party reasonable prior written notice of such disclosure, if allowed by law, and cooperates with the disclosing party in seeking a protective order or other appropriate relief to protect the confidentiality of such Confidential Information. In the event of a breach, or threatened breach, of these confidentiality obligations, the disclosing party may obtain appropriate equitable relief, including injunction, in addition to whatever remedies it may have at law. The terms, but not the existence, of this Agreement shall be considered Confidential Information of both parties. Nothing in this Agreement shall alter or limit the assignments and grants of rights and licenses in and to Intellectual Property in this Agreement.
If GLI is served a subpoena or is required to attend or respond to a legal proceeding related to Client, the Submission Materials or GLI’s Services or the Report, Client shall pay GLI’s reasonable costs and fees, including any attorneys’ fees for GLI to attend and/or respond. Additionally, Client is responsible to file any available motion to quash a subpoena or for a protective order.
GLI may disclose Confidential Information of Client if GLI is requested or required to do so by any governmental authority or regulatory agency, or during the course of any regulatory audit, investigation, examination or similar proceeding, or by an order, demand, or subpoena of a properly designated court of law in a relevant jurisdiction.
Reports/Assessments: The Report and GLI’s assessments and methodologies are proprietary to GLI and constitute GLI’s Confidential Information covered by the preceding Section and/or any other confidentiality agreement entered into between GLI and Client. The disclosure of the Report and findings of GLI’s assessments to third parties could adversely affect both Client and GLI. Accordingly, such Confidential Information is supplied in confidence, on the strict condition that no part of it will be reprinted, reproduced or transmitted to any person or entity unaffiliated with Client without the prior written approval of GLI.
The Report and findings of GLI’s assessment can only be used in the original whole context and only for the limited and specific scope stated in the Proposal and the Report. Any alteration renders the Report invalid and is strictly prohibited. The assessment methods used, excluded assessment methods and actual data showing the assessment results shall be and remain Confidential Information of GLI. However, the actual data showing the assessment results may be made available upon Client’s written request.
Client shall promptly review the Report, analyze it for accuracy and report deficiencies immediately to GLI. GLI has undertaken to perform the Services based on its understanding of the Submission Materials and agreed to Services.
Following a successful resolution or clarification of any deficiencies or discrepancies noted by GLI in its preliminary assessment, GLI’s assessment findings and all Submission Materials being reported upon will undergo a customary quality assurance (QA) review prior to finalization. GLI will then typically issue its Report three (3) to five (5) business days after the completion of the assessment and QA review.
The Report and the assessment findings produced by GLI shall reflect the assessment results based on the agreed-to Services and shall be subject to the limitations stated in this Agreement. Except as expressly stated in this Agreement, GLI has no obligation to update the Report to address information discovered or changes that arise after the date of the Report’s delivery.
Under no circumstance should the Report or assessment findings generated by GLI as a result of the Services be construed as an endorsement, approval, certification or warranty regarding the legality, functional quality or performance, and shall not be considered as having passed or conformed to any testing standard or regulation, and no person or party shall state or imply anything to the contrary.
The Report may not be relied upon for any reason by any person or entity including, but not necessarily limited to, the manufacturer or developer of any Submission Materials, a non-GLI laboratory, or any regulatory authority. Client shall not make any false or misleading claims regarding the Report or the Services.