Terms of Agreement – Power Technology Research Inc.
March 23rd, 2021
1. PAYMENT. Payments shall be made to Power Technology Research Inc. (also referred to as “PTR”) in one lump sum. If any invoice is not paid when due, interest will be added to and payable on all overdue amounts at 5 percent per year, or the maximum percentage allowed under applicable Delaware laws, whichever is less.
Client shall pay all costs of collection, including without limitation, reasonable attorney fees. In addition to any other right or remedy provided by law, if Client fails to pay for the Services when due, PTR has the option to treat such failure to pay as a material breach of the Contract, and may cancel the Contract and/or seek legal remedies.
2. WORK PRODUCT OWNERSHIP. Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively the “Work Product”) developed in whole or in part by PTR in connection with the Services will be the exclusive property of PTR. Work Product is licensed solely for internal use and Client may use the information to create reports or presentations. Work Product is not licensed for external use and Client must never a) use Work Product to produce a commercial product or service, or b) directly for revenue generating purposes. For limited external use, written consent may be granted by PTR on a case by case basis. Upon request, Client will execute all documents necessary to confirm or perfect the exclusive ownership of PTR to the Work Product.
3. CONFIDENTIALITY. PTR, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of PTR, or divulge, disclose, or communicate in any manner, any information that is proprietary to Client. PTR and its employees, agents, and representatives will protect such information and treat it as strictly confidential. This provision will continue to be effective after the termination of the Contract. Any written waiver by Client of these confidentiality obligations which allows PTR to disclose Client’s confidential information to a third party will be limited to a single occurrence tied to the specific information disclosed to the specific third party, and the confidentiality clause will continue to be in effect for all other occurrences.
4. WARRANTY. PTR shall provide its services and meet its obligations under the Contract in a timely and workmanlike manner, using knowledge and recommendations for performing the services which meet generally acceptable standards in PTR’s community and region, and will provide a standard of care equal to, or superior to, care used by service providers similar to PTR on similar projects.
5. DEFAULT. The occurrence of any of the following shall constitute a material default under the Contract:
- The failure to make a required payment when due.
- The insolvency or bankruptcy of either party.
- The subjection of any of either party’s property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
- The failure to make available or deliver the Services in the time and manner provided for in the Contract.
6. REMEDIES. In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of the Contract (including without limitation the failure to make a monetary payment when due), the other party may terminate the Contract by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have thirty days from the effective date of such notice to cure the default(s). Unless waived in writing by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of the Contract.
7. FORCE MAJEURE. If performance of the Contract or any obligation under the Contract is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
8. DISPUTE RESOLUTION. The parties will attempt to resolve any dispute out of or relating to the Agreement through friendly negotiations amongst the parties. If the matter is not resolved by negotiation, the parties will resolve the dispute using the below Alternative Dispute Resolution (ADR) procedure.
Any controversies or disputes arising out of or relating to this Agreement will be submitted to mediation in accordance with any statutory rules of mediation. If mediation is not successful in resolving the entire dispute or is unavailable, any outstanding issues will be submitted to final and binding arbitration under the rules of the American Arbitration Association. The arbitrator’s award will be final, and judgment may be entered upon it by any court having proper jurisdiction.
9. ENTIRE AGREEMENT. The Contracts contain the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of the Contract. The Contract supersedes any prior written or oral agreements between the parties.
10. SEVERABILITY. If any provision of the Contracts will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of the Contract is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
11. AMENDMENT. The Contracts may be modified or amended in writing by mutual agreement between the parties, if the writing is signed by the party obligated under the amendment.
12. GOVERNING LAW. The Contracts shall be construed in accordance with the laws of the State of Delaware.
13. NOTICE. Any notice or communication required or permitted under the Contracts shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing.
14. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of the Contract shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Contract.
15. ATTORNEY’S FEES TO PREVAILING PARTY. In any action arising hereunder or any separate action pertaining to the validity of this Agreement, the prevailing party shall be awarded reasonable attorney’s fees and costs, both in the trial court and on appeal.
16. CONSTRUCTION AND INTERPRETATION. The rule requiring construction or interpretation against the drafter is waived. The document shall be deemed as if it were drafted by both parties in a mutual effort.