Effective October 17, 2017
The following terms and conditions (“Agreement”) apply to the services (the “Services”) offered by Sencha Inc. (“Sencha”) for which you (the “Customer”) have paid the applicable fee (the “Fee”), as such Services and Fees are agreed in the applicable Services Engagement Work Order.
1. Work Product. All right, title and interest to any Work Product (as hereinafter defined) will be the sole and exclusive property of Customer and will be considered “works made for hire”. In the event the Work Product or portions thereof are not considered a “Work for Hire” as that term is defined under the U.S. copyright laws, Sencha hereby irrevocably, perpetually, and unconditionally transfers and assigns to Customer all of Sencha’s right, title, ownership, and interest in and to the Work Product. “Work Product” means any information, software programs, code, logic diagrams, flow charts, databases, procedural diagrams, maps, documentation and other materials produced by Sencha exclusively for Customer hereunder and accepted and paid for by Customer as a direct result of this Agreement. Work Product shall not include products offered by Sencha in the ordinary course of business. No Work Product is produced by Services referenced as a “Learning Engagement.” Reference to Work Product herein does not include Sencha Products and Independent Services Technology. “Sencha Products” means the products offered by Sencha in the ordinary course of business, which may be independently licensed by Customer. “Independent Services Technology” means (a) Sencha technology, methodologies and intellectual property (including, without limitation routines, class libraries, objects, software, user interface designs, architecture, and documentation) existing at the Effective Date or otherwise arising outside of Services under this Agreement, and (b) any derivatives, improvements, enhancements or extensions of the foregoing conceived, reduced to practice, or developed during the term or in performance of this Agreement that are not uniquely applicable to the Work Product or that have general applicability in the art. Subject to the terms and conditions of this Agreement, to the extent (if at all) any Independent Services Technology is incorporated into the Work Product, Sencha grants to Customer a non-exclusive, non-transferable (except as may be provided herein as a part of the Work Product), non-sublicensable (except as may be provided herein as a part of the Work Product), royalty-free, worldwide license to use, copy, modify, create derivative works based on, distribute or otherwise make commercially available the Independent Services Technology as a part of the Work Product. Sencha shall further assist Customer from time to time at Customer’s request and expense, to further evidence, record and perfect assignments, licenses, waivers, ratifications and consents referred to herein and to perfect, maintain, enforce and defend any rights assigned.
2. Fees. Invoices shall be rendered by Sencha to Customer for Services Performed. Each invoice shall be payable within thirty (30) days of receipt. Any amount not paid within thirty (30) days from the date due shall bear interest from such date until paid at the lessor of 1.5% per month (18% per annum) or the maximum rate permitted by applicable law. All accounts in arrears more than ninety (90) days will be subject to collection by a third party and/or litigation. Customer agrees to pay all legal costs including collection agency fees, costs, legal costs, and reasonable attorney’s fees if it becomes necessary to enforce collection or file suit. Customer shall be responsible for all taxes or charges of any kind in connection with this Agreement (including but not limited to, customs duties, government permit, tariffs, excise, gross receipts, sales and use and value added tax), except income tax or corporation tax (or similar taxes) imposed on Sencha. Reference to ‘days’ means approximately 8 hour days unless otherwise specified.
3. Expenses. Customer will reimburse Sencha for all reasonable and customary travel, lodging and other related expenses incurred by Sencha or its personnel in connection with the onsite performance of Services, subject to Customer’s travel and expense policy as provided to Sencha in advance. At Customer’s request, Sencha will provide Customer with receipts and other customary documentation for all such expenses.
4. Confidentiality. “Confidential Information” means any information of Customer disclosed to Sencha which is marked confidential or is of a nature which should reasonably be expected to be held confidential. Sencha will not use Confidential Information for any purpose other than performing Services under this Agreement. Sencha will not publish or reveal any Confidential Information to anyone except those persons authorized by Customer. This requirement shall not apply to such data that is either (i) previously known to the party, (ii) in the public domain, (iii) received from a third party with a legal or contractual right to disclose such data, or (iv) independently developed by the party. The terms of this Section shall survive termination of this Agreement. Sencha may disclose the Customer’s Confidential Information to the extent such disclosure is required by order or requirement of a court, administrative agency, or other governmental body, but only if Sencha provides prompt notice thereof to the Customer to enable the Customer to seek a protective order or otherwise prevent or restrict such disclosure.
5. Warranties. Each party warrants it has the right and power to enter into this Agreement, that an authorized representative has executed this Agreement, and that each will comply with any applicable laws and regulations pertaining to this Agreement.
EXCEPT FOR THE WARRANTY ABOVE, EACH PARTY DISCLAIMS ALL WARRANTIES (EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY) WITH REGARD TO ANY SERVICES OR TECHNOLOGIES PROVIDED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS. IN NO EVENT WILL SENCHA, ITS SUBSIDIARIES, ITS AFFILIATES, OR SENCHA’S LICENSORS BE LIABLE TO COMPANY, WHETHER IN CONTRACT, BY REASON OF NEGLIGENCE OR OTHERWISE, FOR PUNITIVE, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) OR LOSS OF GOODWILL OR PROFIT IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF OR INABILITY TO USE THE WORK PRODUCT, OR NON-PERFORMANCE OF ANY SERVICES PROVIDED HEREUNDER, OR IN CONNECTION WITH ANY CLAIM ARISING FROM THIS AGREEMENT, EVEN IF SENCHA, ITS SUBSIDIARIES, ITS AFFILIATES, OR SENCHA’S LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. CUSTOMER AGREES THAT SENCHA’S ENTIRE LIABILITY HEREUNDER FOR DAMAGES SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE BY CUSTOMER WITHIN THE SIX MONTH PERIOD IMMEDIATELY PRECEEDING THE DATE THE LIABILITY THAT GAVE RISE TO DAMAGES WAS INCURRED.
6. Independent Contractor. Sencha is an independent contractor. Nothing in this Agreement is intended to construe the existence of a partnership, joint venture, employment or agency relationship between Customer and Sencha. Sencha shall be responsible for providing any salary or other benefits to its personnel. Customer agrees that, during the term of this Agreement and for one (1) year thereafter, neither it nor any of its subsidiaries or affiliates shall knowingly, except with the prior written consent of Sencha, offer employment to or employ any person employed then or within the preceding twelve (12) months by the other or any subsidiary or affiliate of Sencha if such person was involved directly or indirectly in the performance of this Agreement, unless such employment is in response to a bona fide general and non-targeted newspaper or other public media advertisement in the ordinary course of business and not as a direct result of this engagement..
7. Applicable Law. This Agreement shall be construed according to, and the rights of the parties shall be governed by, the law of the State of Texas without regard to choice of law rules. Venue for any court action arising under this Agreement shall lie exclusively in Travis County, Texas. The parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement shall be submitted to JAMS, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration pursuant to the terms below. Either party may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in scheduling the mediation proceedings. The parties agree that they will participate in the mediation in good faith and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or at any time following 45 days from the date of filing the written request for mediation, whichever occurs first (“Earliest Initiation Date”). The mediation may continue after the commencement of arbitration if the parties so desire. At no time prior to the Earliest Initiation Date shall either side initiate an arbitration or litigation related to this Agreement, except that either party may institute an action in court for injunctive or other equitable relief at any time. The arbitration shall be administered by JAMS in Travis County, Texas pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction.
8. Term & Termination. This Agreement shall remain in effect until the Services have been completed. Without prejudice to any other rights, if either party materially defaults in the performance of this Agreement, then the non-breaching party may give written notice to the defaulting party of such material default. If the noticed default is not cured within sixty (60) calendar days following receipt of default notice by the defaulting party, then the non-breaching party shall have the immediate right to terminate this Agreement. Either party may terminate this Agreement without cause by giving the other thirty (30) days prior written notice. Upon termination of this Agreement, all obligations of the parties to one another shall be released except the obligation of Customer to pay for Services rendered prior to the date of termination, the obligation of both parties to comply with the restrictions concerning an offer of employment and the obligation of both parties to comply with the use of Confidential Information as provided herein. Sencha may terminate this Agreement without cause upon ten (10) days prior written notice to the Customer in the event that (a) the parties are unable to agree upon any matter left to be agreed to pursuant to an Work Order, (b) Customer fails to provide reasonable access to the resources necessary to perform under a Work Order, including access to personnel, web services, application software, databases, and source code, as applicable, or (c) immediately, upon the failure of Customer to pay any amount due in a timely manner.
9. Miscellaneous. This Agreement and the submission form completed by the Customer constitute the entire Agreement between Sencha and Customer on this subject matter. This Agreement shall not be modified except by a subsequently dated written Work Order signed on behalf the parties by their duly authorized representatives and any provision of a purchase order purporting to supplement or vary the provisions hereof shall be void. If Customer modifies the scope of Services hereunder, Sencha may perform such Services at its discretion. If Sencha so performs, Customer agrees that Sencha may expend the time which Sencha deems reasonable and necessary to perform the Services, subject to the charges for such Services, and other terms and conditions of performance herein and in the related Work Order. The waiver by either party of a breach of any provisions contained herein shall be in writing and shall in no way be construed as a waiver of any succeeding breach of such provision or the waiver of the provision itself. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section. All remedies available to either party for breach of this Agreement are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies. If any of the provisions of the Agreement are ultimately deemed by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be deleted and the remaining terms and provisions under the Agreement shall continue in full force and effect. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party. Either party is excused from performance and shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the control of the parties including, but not limited to, work stoppages, fires, hurricanes, civil disobedience, riots, rebellions, accident, explosion, flood, storm, Acts of God and similar occurrences.