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City Average, All Items ("CPI"), as published by the United
<br />States Department of Labor, Bureau of Labor Statistics. The
<br />percentage increase in the CPI shall be measured over the
<br />period since the commencement of the Agreement (in the
<br />case of the first increase) or since the effective date of the
<br />last price increase (in the case of any subsequent price
<br />increase). In no event shall the increase in any, one-year
<br />exceed five percent (5%). 4Sight shall notify Company in
<br />writing of any price increase at least ninety (90) days prior
<br />to the effective date of the increase.
<br />3.2 Invoices. Unless otherwise set forth in the
<br />applicable Ordering Document, the associated payment
<br />shall be made within thirty (30) days after Company's
<br />receipt of invoice accompanied by all supporting
<br />documentation.
<br />Section 4. RELATIONSHIP BETWEEN THE PARTIES.
<br />4.1 4Slght is a non-exclusive independent contractor.
<br />Nothing in this MSA shall be construed to create a
<br />partnership, joint venture or other similar relationship
<br />between the Parties. 4Sight shall be solely responsible for
<br />all tax returns and payments required to be filed with or
<br />made to any federal, state or local tax authority with
<br />respect to 4Sight' performance of Services and receipt of
<br />payments under this MSA.
<br />4.2 During the Term of this MSA and for a period of
<br />one (1) year following its termination or expiration,
<br />Company represents and warrants that it will not hire,
<br />employ or contract directly or indirectly any employee of
<br />4Slght, who became known to Company in connection
<br />with the performance of this MSA without the prior
<br />written approval of 4Sight; provided however, this
<br />provision shall not prohibit the hiring of any person that
<br />responds to general solicitations not specifically directed at
<br />employees of 45ight.
<br />Section S. CONFIDENTIAL INFORMATION.
<br />5.1 Definition. "Confidential Information" means
<br />any information disclosed by either Party to the other,
<br />whether disclosed verbally, in writing, or by inspection of
<br />tangible objects. Confidential Information includes, but is
<br />not limited to, all product designs, capabilities,
<br />specifications, drawings, program code, work designs,
<br />models, technology, know-how, documentation,
<br />components, software (in various stages of development),
<br />test and development boards, hardware reference code
<br />and platforms, architectures, agreement terms, financial
<br />and pricing information, business and marketing plans,
<br />actual and potential customers and suppliers, the Services,
<br />Ordering Document, marketing plans, data, and other
<br />terms relating to the Services, Including the terms of this
<br />MSA and other similar information that is proprietary to
<br />either Party. Confidential Information shall not Include any
<br />information that: (a) was in lawful possession prior to the
<br />disclosure, as clearly and convincingly corroborated by
<br />written records, and had not been obtained by either
<br />directly or indirectly from either Party; (b) is lawfully
<br />disclosed by a third party without actual, implied or
<br />intended restriction on disclosure through the chain of
<br />possession, or (c) is independently developed by a Party
<br />without use of or access to the Confidential Information,
<br />as clearly and convincingly corroborated by written
<br />records. Confidential Information obligations in accordance
<br />to Section 5 of this MSA shall survive any termination of
<br />this MSA for five (5) year after the effective date of
<br />termination.
<br />5.2 Reouirements. The Parties agree that it shall not
<br />use or disclose in any way, other than as needed under this
<br />MSA, Confidential Information to any third parties. The
<br />Parties will disclose Confidential Information only to its
<br />Personnel having a need -to -know for the performance of
<br />the Services under this MSA. The foregoing prohibition on
<br />disclosure of Confidential Information shall not apply to
<br />the extent certain Confidential Information is required to
<br />be disclosed by either Party as a matter of law or by order
<br />of a court and/or to potential and actual acquirers,
<br />investors, underwriters and lenders, subject to non-use
<br />and non -disclosure requirements substantially the same as
<br />set forth herein. Upon termination of this MSA, a Party
<br />may deliver to the other Party instructions to destroy all
<br />materials, documents and other media (whether
<br />maintained electronically or otherwise) containing
<br />Confidential Information, together with all copies thereof
<br />in whatever form, and shall certify in writing the
<br />completion of such return or destruction, as the case may
<br />be. If it is infeasible to return or destroy Confidential
<br />Information, due to regulatory or compliance purposes,
<br />protections are extended to such Confidential Information,
<br />in accordance with the confidentiality provisions in this
<br />MSA.
<br />5.3 Disclosure to Public and Non-publi . Neither
<br />party shall use the other party's name or trademarks in
<br />any advertising, website, press release or other form of
<br />public disclosure without the prior written approval of the
<br />appropriate officer of the other party. Company agrees
<br />that 4Sight may make lawful references to Company in its
<br />marketing activities.
<br />Section 6. INTELLECTUAL PROPERTY. Each Party
<br />shall own and retain all rights, title and interest in and to
<br />Its Intellectual property, and nothing in this MSA or an
<br />Ordering Document shall be deemed to grant any license
<br />or rights to the other Party.
<br />Section 7. REPRESENTATIONS AND WARRANTIES.
<br />7.1 4Sight hereby represents and warrants that: (a)
<br />the Licensed Software will be performed in a competent
<br />and professional manner and the Licensed Software will
<br />meet the specifications in the applicable Documentation.
<br />Customer shall notify 4Slght in writing of any breach of this
<br />warranty within thirty (30) days after completion of the
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