Crayon Software Experts, LLC Standard Terms and Conditions
1. Services. It is understood and agreed that Crayon Software Experts, LLC (“Crayon”) services may include advice and recommendations but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by Customer.
2. Term. Unless terminated sooner in accordance with its terms, the engagement shall terminate upon the completion of Crayon’s services under the Engagement Letter. In addition, either party may terminate the Engagement Letter at any time by giving written notice to the other party not less than 30 calendar days before the effective date of termination.
3. OWNERSHIP RIGHTS IN WORK PRODUCT
- Ownership to work product. Deliverables specifically identified in any SOW hereunder. created or prepared by Crayon for Purchaser or End User pursuant to this Agreement, but excluding any Excluded Inventions (as defined in Section 6 subsection C Exclusion of Inventions) will collectively be termed the “Work Product.” Crayon and Purchaser agree that if any Work Product is copyrightable and such work product falls within the definition of a “work made for hire” as defined in 17 U.S.C. 101 and 201(b), all copyrights and copyright registrations related to such copyrightable Work Product will be the sole and exclusive property of End User or Purchaser based on contracts between Purchaser and End User. Otherwise, Crayon shall assign the entire right, title and interest in and to the Work Product to End User or Purchaser, as the case may be.
- Exclusion of inventions. Crayon will not be required to assign to Purchaser, End User, or its Affiliates any invention, discovery, innovation, or improvement that Crayon can show was developed entirely on its own time, not resulting from any work performed by Crayon for End User or Purchaser and without the use of any Crayon or Crayon Affiliate equipment, supplies, facility, artwork, or Confidential Information (the “Excluded Inventions”). In any dispute with respect to these exclusions, the burden of proof will be on Crayon to show that the exclusion applies. If any Excluded Inventions are incorporated into the deliverables, Crayon hereby grants to Purchaser or End User a paid-up, non-exclusive, worldwide unlimited license to use, copy, and redistribute such Excluded Inventions in connection with its use of the deliverables.
- Crayon Property. Purchaser acknowledges and agrees that in the performance of deliverables and Services, Crayon (or its Affiliates) may use certain Crayon or Affiliates proprietary and owned property (“Crayon Property”). Crayon or its Affiliates (as the case may be) retain sole and exclusive ownership of all such Crayon Property and all intellectual property rights, title and interest thereto. In those cases where Crayon Property is included in any deliverables and Services, Crayon grants Purchaser or End User (as the case may be) a nonexclusive, nontransferable, license to use the Crayon Property solely for their own internal business purposes, or external purpose if identified in the specific SOW in connection with the deliverables and Services. All rights not expressly granted to End User or Purchaser (as the case may be) are reserved by Crayon and there are no implied licenses
- Residual Knowledge. Residual Knowledge means any general ideas, concepts, know-how, methodologies, processes, technologies, algorithms or techniques retained in the unaided mental impressions of Crayon’s personnel relating in any way to the Project or Services provided under this MSA, SOW. Crayon perpetually retains any and all rights, title and interests in and unrestricted use to any Residual Knowledge developed or provided by it during the Term of this MSA
4. INTELLECTUAL PROPERTY
- Crayon further represents to Purchaser that all deliverables will be the original work of Crayon (or duly licensed by Crayon for purposes for which they are delivered). Crayon further represents to Purchaser that:
- There is no claim, litigation, or proceeding pending or threatened against Crayon with respect to Services or deliverables, or any component thereof, alleging infringement of any Intellectual Property Rights of any person or entity;
- That there is no pending litigation that could impact Crayon’s ability to provide the Services or deliverables
- That neither the performance of the Services by Crayon nor furnishing of the deliverables nor Purchaser’s End User's or Purchaser's use or continued use of same under this Agreement or any SOW, will in any way constitute an infringement or other violation of any Intellectual Property Rights, nondisclosure agreement, or other rights of any third party.
- Purchaser represents to Crayon that to the extent that Purchaser has directly or indirectly supplied any Intellectual Property, whether Purchaser’s, End User or any third party, to Crayon for use or as part of the deliverables, Project or SOW, that:
- There is no claim, litigation, or proceeding pending or threatened against Purchaser or the third-party alleging infringement of any Intellectual Property Rights of any person or entity;
- That there is no pending litigation that could impact Crayon’s ability to work on or otherwise modify the Intellectual Property provided by Purchaser; and
- That neither the performance of the Services by Crayon nor furnishing of the deliverables to nor Purchaser’s End User's or Purchaser's use or continued use of same under this Agreement or any SOW, will in any way constitute an infringement or other violation of any Intellectual Property Rights, nondisclosure agreement, or other rights of any third party, in any materials provided by Purchaser to Crayon
5. Limitation on Warranties
CRAYON WARRANTS THAT IT WILL PERFORM SERVICES UNDER THE ENGAGEMENT LETTER IN GOOD FAITH, WITH QUALIFIED PERSONNEL IN A COMPETENT AND WORKMANLIKE MANNER IN ACCORDANCE WITH APPLICABLE INDUSTRY STANDARDS. CRAYON DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR WILL MEET CUSTOMER’S REQUIREMENTS. CRAYON DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Crayon is not responsible for any delays, delivery failures, loss or corruption of data, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, or related to any services provided by third parties, and Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6. Limitation on Damages
Except for each party’s indemnification obligations as set forth below, neither Customer nor Crayon shall be liable to the other for any actions, damages, claims, liabilities, costs, expenses or losses in any way arising out of or relating to the services performed under the Engagement Letter for an aggregate amount in excess of the fees paid or owing to Crayon for services rendered by Crayon under the Engagement Letter in the twelve-month period before the claim arose. In no event shall either party be liable for consequential, special, indirect, incidental, punitive or exemplary damages, costs, expenses, or losses (including, without limitation, lost profits and opportunity costs). Crayon shall have no liability with respect to the results of any audit or to payment request of any vendor of Customer. Customer shall be solely responsible for Customer’s deployment and use of its software assets. Customer assumes sole responsibility for information and results obtained from the use of the services, and for conclusions drawn from such use. The provisions of this Paragraph shall apply regardless of the form of action, damage, claim, liability, cost, expense, or loss, whether in contract, statute, tort or otherwise.
7. Cooperation; Use of Information
- Customer agrees to cooperate with Crayon in the performance of the services under the Engagement Letter and shall provide Crayon with timely access to and use of Customer's personnel, facilities, equipment, data and information to the extent necessary for Crayon to perform the services under the Engagement Letter. Customer shall provide Crayon with license entitlement information. The Engagement Letter may set forth additional obligations of Customer in connection with this engagement. Customer acknowledges that Customer's failure to assign Customer personnel having skills commensurate with their role with respect to this engagement could adversely affect Crayon’s ability to provide the services under the Engagement Letter.
- Customer acknowledges and agrees that Crayon may, in performing its obligations pursuant to this Agreement, use data, material, and other information furnished by Customer without any independent investigation or verification and that Crayon shall be entitled to rely upon the accuracy and completeness of such information in performing the services under the Engagement Letter.
- 8. Confidentiality
“Confidential Information” means all documents, software, reports, data, records, forms and other materials obtained by one party (the “Receiving Party”) from the other party (the “Disclosing Party”) in the course of performing the services under the Engagement Letter:
- that have been marked as confidential;
- whose confidential nature has been made known by the Disclosing Party to the Receiving Party; or
- that due to their character and nature, a reasonable person under like circumstances would treat as confidential. Notwithstanding the foregoing, Confidential Information does not include information which:
- is already known to the Receiving Party at the time of disclosure by the Disclosing Party;
- is or becomes publicly known through no wrongful act of the Receiving Party;
- is independently developed by the Receiving Party without benefit of the Disclosing Party’s Confidential Information or
- is received by the Receiving Party from a third party without restriction and without a breach of an obligation of confidentiality.
- The Receiving Party will deliver to the Disclosing Party all Confidential Information of the Disclosing Party and all copies thereof when the Disclosing Party requests the same, except for one copy thereof that the Receiving Party may retain for its records. The Receiving Party shall not use or disclose to any person, firm or entity any Confidential Information of the Disclosing Party without the Disclosing Party’s express, prior written permission; provided, however, that notwithstanding the foregoing, and subject to Paragraph 13 (d), the Receiving Party may disclose Confidential Information to the extent that it is required to be disclosed pursuant to a statutory or regulatory provision or court order or to fulfill professional obligations and standards.
- Each party shall be deemed to have met its nondisclosure obligations under this Paragraph 13 as long as it exercises the same level of care to protect the other’s information as it exercises to protect its own confidential information but in no event less than reasonable care, except to the extent that applicable law or professional standards impose a higher requirement.
- If the Receiving Party receives a subpoena, other validly issued administrative or judicial demand or has a professional obligation or standard requiring it to disclose the Disclosing Party’s Confidential Information, the Receiving Party shall provide prompt written notice to the Disclosing Party of such requirement or demand in order to permit it to seek a protective order or otherwise intervene to protect its interests in the Confidential Information. Receiving Party shall provide full cooperation and assistance to the Disclosing Party in seeking to obtain such protection. So long as the Receiving Party gives prompt notice and fully cooperates, as provided herein, the Receiving Party shall be entitled to comply with such demand to the extent permitted by law, subject to any protective order or the like that may have been entered in the matter.
Document updated on the October 1st 2020