EXHIBIT 10.1
TERMS & CONDITIONS
These Terms & Conditions (the "Terms & Conditions") are agreed to and accepted
this 17/th/ day of January 1999, by Fitch, Inc., an Ohio corporation ("Fitch"),
and ECO-AIRE, a corporation ("Client"), and shall govern Fitch's provision of
any and all design and consulting services described in any written proposal
signed and dated by Fitch and accepted in writing by Client (a "Proposal"), the
terms of which are incorporated by reference herein.
1. Services Rendered
Fitch shall render to Client certain specific design and consulting
services (the "Work") described in a particular Proposal. Fitch shall not be
obligated to provide any services (including data storage and retrieval
services) or to perform any other work for Client's benefit except as expressly
and specifically described in a Proposal.
2. Payment
A. Fees and Expenses
In exchange for the Work, Fitch shall be entitled to receive from
Client the fees and expenses set forth in the Proposal. Fees and expenses for
additional work or time expenditures caused by Client, Client's agents or
contractors, substantial work changes requested by Client, or other
circumstances beyond Fitch's control must be agreed upon by both parties before
further work proceeds.
B. Payment Terms
All fees and expenses payable by Client will be billed monthly and
payable within 30 days of the date of the invoice. A monthly late-charge of 1.5%
of the billed amount will be added to any unpaid accounts more than 30 days past
due. Prior to commencement of the Work, an initial payment of 50% of the total
professional fees payable under the Proposal (predetermined or estimated) will
be required.
3. Intellectual Property
For the purposes of this section, "Intellectual Property Rights" shall mean
any and all patent, copyright, trademark, service ▇▇▇▇, and trade name rights
associated with or relating to the property described.
A. Transfer of Rights
Upon Fitch's receipt of payment in full of all amounts due and owing
to Fitch for performance of the Work (or, when applicable, portions of the
Work), (i) Client shall have an exclusive, perpetual, worldwide, royalty-free
license to use the final designs and recommendations furnished by Fitch to
Client in the performance of such work and accepted by Client, including, but
not limited to, any and all drawings, artwork, computer software,
prototypes, or other physical embodiments of such final designs and
recommendations, and any and all Intellectual Property Rights associated
therewith, in connection with the particular purposes and field of use specified
in the Proposal, and (ii) Fitch hereby grants such license to Client,
specifically reserving for itself and its assignees all other rights in and to
the work, including any and all Intellectual Property Rights associated with the
Work and not licensed to Client hereunder.
B. Protection of Client's Rights
Client shall have the sole responsibility to secure for itself
statutory protection for its Intellectual Property Rights in the Work. Fitch
agrees to cooperate with client in the preparation and execution of all
documents necessary to secure such protections, upon payment in full of all
amounts due and owing to Fitch under the Proposal; provided, however, that
Client shall promptly pay or reimburse fitch for any and all expenses reasonably
incurred by Fitch in connection with its cooperation.
C. Non-Infringement of Rights of Third Parties
Client shall have sole responsibility for conducting patent,
copyright, trademark, and service ▇▇▇▇ searches and any other investigations
required in order to ensure that the Work, or any portion thereof, does not and
will not infringe upon or violate any Intellectual Property Rights of any third
party. Fitch represents and warrants to Client that it has no knowledge that the
Work (or any portion thereof) infringes or will infringe upon any Intellectual
Property Rights of a third party. Client shall have sole responsibility to take
all steps necessary to ensure that its use of the Work neither exceeds the uses
permitted by the Intellectual Property Rights in the Work owned or licensed by
Client hereunder nor infringes upon the Intellectual Property Rights of any
third parties.
4. Termination
The Work may be terminated by either party at any time upon 15 days'
written notice to the ocher party. Upon any such termination of the Work, Fitch
shall be entitled to receive reimbursement for all expenses actually incurred,
and compensation for all services actually rendered, on an hourly basis (where
the Proposal indicates an hourly fee) or a percentage-of-completion basis (where
the Proposal indicates a predetermined fee).
5. Confidentiality
"Confidential Information" shall mean information disclosed by one party to
the other party which, at the time of first disclosure, is marked "CONFIDENTIAL"
if disclosed in tangible form, or clearly identified as confidential by the
disclosing party if disclosed in intangible form. Confidential Information shall
not include any information that is: (i) available to the public, other than as
a result of a breach of this agreement; (ii) rightfully received from a third
party not in breach of any obligation of confidentiality; (iii) independently
developed by a party without recourse to Confidential Information of the other
party; or (iv) known to the recipient prior to the time of first disclosure.
Each party agrees, for a period of two (2) years from the date of the
Proposal, not to disclose any Confidential Information received from the other
party to any third party, except: (i) as may be necessary in performing any work
to be performed by Fitch for Client pursuant to the Proposal or other agreement;
(ii) as required by law; or (iii) as otherwise agreed between the parties. Each
party shall take reasonable care to safeguard the confidentiality of
Confidential Information in its possession, which care shall not be less than
the degree of care used to prevent disclosure of its own confidential
information.
6. Indemnification
A. Indemnification of Client by Fitch
For a period of three years from the date of the Proposal to which
Client's claim for indemnification relates, Fitch shall indemnify and hold
Client harmless from and against any and an liabilities, damages, suits,
actions, claims, costs, losses, or expenses (including reasonable attorneys'
fees) arising out of and directly attributable to the performance of the Work or
any breach of the Proposal or the Terms & Conditions by Fitch, including, but
not limited to, a breach of any of the representations, warranties, covenants,
or agreements contained in Section 3 hereof, or the gross negligence of Fitch in
the performance of the Work; provided, however, that (i) the foregoing
indemnification obligations shall no[ apply to any such liabilities, damages,
suits, actions, claims, costs, losses, or expenses arising out of or relating in
any way to any act or omission by Client or any third party, and (ii) the
maximum amount of Fitch's liability to Client under this paragraph A shall be
limited to the total amount of compensation paid by Client to Fitch for
performance of the Work to which Client's claim for indemnification relates.
Client shall provide reasonable notice to Fitch of any claim asserted against
Client that may give rise to a claim for indemnification hereunder and Client
will provide reasonable assistance to Fitch as necessary for Fitch to defend any
such claim.
B. Indemnification of Fitch by Client
Except as specified in paragraph A above, Client shall indemnify,
defend, and hold Fitch harmless from and against any and A liabilities, damages,
suits, actions, claims, costs, losses, or expenses (including reasonable
attorneys' fees), arising out of or relating in any way to the Work, the
Proposal, and/or the Terms & Conditions. Fitch shall provide reasonable notice
to Client of any claim asserted against Fitch that may give rise to a claim for
indemnification hereunder and Fitch will provide reasonable assistance to Client
as necessary for Client to defend any such claim.
7. Responsibility for Materials
In connection with the Work, Fitch shall neither be responsible for nor
guarantee any fabric, material, software component, product, or article against
wearing, fading, or latent defects.
8. Attribution
Upon Client's introduction of the Work into the public domain, and without
implying that Client has endorsed Fitch in any way, Fitch shall have the right
to acknowledge its involvement in the Work in any and all public relations,
marketing, advertising or ocher promotional activities engaged in by Fitch. For
this limited purpose, Fitch shall have the right to make reasonable use of
Client's name, as well as likenesses of such portions of the Work as Client has
introduced into the public domain.
9. Dispute Resolution
Any dispute between the parties which arises out of or relates in any way
to the work, the proposal, the Terms & Conditions, and/or the alleged non-
existence, breach, or subject matter thereof (a "Dispute"), shall be governed by
the internal laws of the State of Ohio, without reference to its conflicts of
laws provisions. The maximum amount of Fitch's liability to Client in connection
with a Dispute shall be limited to the total amount of professional fees paid by
Client to Fitch under the proposal. Disputes in which the amount in controversy
does not exceed fifty thousand dollars ($50,000) shall be settled by arbitration
administered by the American Arbitration Association in accordance with its
Commercial Arbitration Rules, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. The fees
and expenses of the arbitrator(s) and the administrative fees of the American
Arbitration Association shall be shared equally by the parties. Each party shall
bear its own costs and expenses (including attorneys' fees).
10. Miscellaneous
A. Waiver
No waiver of any provision of the Proposal or the Terms & Conditions
shall be valid or binding upon the parties unless made in writing and signed on
behalf of the parties by their respective duly authorized representatives. The
failure of either party to insist upon strict performance of any provision of
the proposal or the Terms & Conditions shall not constitute a waiver of the
right to insist upon strict performance of the same provision or other
provisions in the future.
B. Severability
If any provision of the proposal or the Terms & Conditions shall be
held to be illegal, invalid or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
C. Force Majeure
Neither party shall be liable for damages for delay or failure to
perform any obligation under the Proposal or the Terms & conditions if such
delay or failure results directly or indirectly from circumstances beyond the
reasonable control of such party.
D. Entire Agreement; Modifications and Amendments
These Terms & Conditions (including all documents and agreements expressly
incorporated by reference and made a part hereof) shall constitute the entire
agreement of the parties with respect to the subject matter hereof, and the same
shall not be modified or amended except in writing signed by both parties.
Client shall not make any modifications or additions to these Terms & Conditions
without the express written consent of Fitch. Any such modifications or
additions made by Client without Fitch's express written consent shall be null
and void.
IN WITNESS WHEREOF, the parties hereto have agreed to become bound by the
Terms & Conditions effective as of the date first above written.
By: Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: SR VP
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Date: 17 JAN 1997
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CLIENT
By: Name: ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: VP/Sales & Marketing
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Date: 17 Jan 1997
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