US Corrosion Services LLC
STANDARD AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement for Professional Services (the “Agreement”), with an effective date of a. Month XX, 20XX is by and between US Corrosion Services LLC (“US Corrosion”), a Texas corporation with its principal office at 4410 Westheimer, Houston, TX 77027, and b. Company Legal Name (“Customer”), a company having its principal place of business in c. City, State
DEFINITIONS
The following terms, when capitalized, will have the meanings designated below:
Confidential Information: Any and all information disclosed by either party to the other that is marked “confidential” or “proprietary,” including orally conveyed information designated confidential at the time of disclosure provided that it is reduced to a written summary marked “confidential” that is supplied to the other party within 30 days of the oral disclosure, this Agreement and any other information related to the Services, the Customer Calibrations, and the Calibration Library. “Confidential Information” does not include any information that the receiving party can demonstrate is: (a) rightfully known by the receiving party prior to disclosure; (b) rightfully obtained from a third party authorized to make such a disclosure; (c) independently developed by the receiving party without use of the disclosing party’s Confidential Information and without breach of this or any other agreement, as demonstrated by contemporaneous documentation; (d) made available to the public without restrictions by the disclosing party; (e) approved for disclosure with the prior written approval of the disclosing party; or (f) required by order of a court of competent jurisdiction, provided that the party required to disclose the information shall use its best reasonable efforts to limit disclosure and to obtain confidential treatment or protective order and further has provided advance notice to allow the disclosing party to participate in the applicable proceeding.
Customer: d. Company Legal Name and any affiliate that they may own at any time during this Agreement.
US Corrosion Services LLC Products: All products developed and owned by US Corrosion Services LLC, including sensors, probes, data, analysis, directory services, and combinations of any of the foregoing.
1. SERVICES
1.1 Services to Customer. US Corrosion Services LLC shall provide the services described in Exhibit A, in addition to other services as may be agreed upon from time to time by the parties (the “Services”).
1.2 Work Product. In performing the Services, US Corrosion Services LLC may use certain materials, products, courseware, and other property that belongs to US Corrosion Services LLC (“US Corrosion Services LLC Property”), which is identified on Exhibit B. US Corrosion Services LLC may add additional US Corrosion Services LLC Property as appropriate during the term of this Agreement with Customer’s approval. The parties acknowledge and agree that US Corrosion Services LLC shall retain all right, title, and ownership in and to all US Corrosion Services LLC Property, including but not limited to all copyright, patent, trademark, trade secret, and any other intellectual property rights pertaining thereto. US Corrosion Services LLC hereby grants to Customer a royalty-free, worldwide, non-exclusive license to use, reproduce, redistribute, and modify the US Corrosion Services LLC Property solely to the extent necessary for Customer to use, reproduce, redistribute or modify the Work Product (as defined below) fully in any way consistent with its capacity as owner of such Work Product.
Unless specifically set forth in the Exhibit, US Corrosion Services LLC shall retain all right, title, and ownership in and to all Work Product (as hereinafter defined) including, but not limited to, all copyright, patent, trademark, trade secret, and any other intellectual property rights pertaining thereto. The parties agree that the Work Product shall be considered “work made for hire”, and the Customer shall have the right, at its own expense, to obtain and hold in its own name copyright or trademark registrations, patents, and such other protections as may be appropriate. US Corrosion Services LLC agrees, upon request of Customer from time to time, to promptly execute such assignments or conveyances of interest as may be necessary to accomplish the foregoing, without further consideration and free from any claims or liens or retention of rights. “Work Product” shall include, but not be limited to, all matter that is created by US Corrosion Services LLC or for which US Corrosion Services LLC is otherwise responsible constituting deliverables hereunder or otherwise developed for Customer in the course of performing the Services or under funding pursuant to this Agreement, whether produced solely or jointly with others, and first conceived, fixed in tangible form, illustrated in a drawing, described in a written record or actually or constructively reduced to practice during the term of this Agreement. Work Product does not include any US Corrosion Services LLC Property.
1.3 Residuals. Customer acknowledges that US Corrosion Services LLC provides professional services for others, and agrees that nothing herein will be deemed or construed to prevent US Corrosion Services LLC from carrying on such services. Nothing in this Agreement will preclude US Corrosion Services LLC from developing for itself, or for others, materials that are competitive with those produced as a result of the services provided under this Agreement, irrespective of their similarity to items that may be developed by Customer under such agreements, provided that no such materials reference or incorporate any of Customer’s Confidential Information or Work Product. US Corrosion Services LLC will have the right to use techniques, methodologies, tools, ideas and other general know-how gained during the performance of services for Customer (the “Residuals”) in the furtherance of US Corrosion Services LLC’ own business and to perfect all other intellectual property rights related thereto, including patent, copyright, trademark and trade secret rights, provided that any such Residuals do not reference or incorporate any Confidential Information or Work Product of Customer.
- Cooperation. Customer will provide reasonable cooperation to US Corrosion Services LLC in providing access, taking actions and executing documents, as appropriate, to help US Corrosion Services LLC perform the Services. Customer agrees that US Corrosion Services LLC’s performance may be dependent on Customer’s timely and effective cooperation with US Corrosion Services LLC, and acknowledges that delays by Customer may result in delays in any scheduled deadlines. US Corrosion Services LLC shall notify Customer of any delay immediately upon identification of such delay and shall document Customer’s responsibility for the delay if requested by Customer.
No Warranty. All Confidential Information is provided “AS IS” and without any representation or warranty, express, implied or otherwise, regarding accuracy or completeness. Neither US Corrosion Services LLC nor its Representatives shall have any liability to Company resulting from Company’s use of or reliance on the Confidential Information.
Non-Solicitation. During the term of this Agreement and for a period of two (2) years following its expiration or termination, Company will not directly solicit any employees of US Corrosion Services LLC with whom Company had contact with or who otherwise became known to Company in connection with the Services; provided, however, the foregoing shall not be deemed a restriction on Company (on third party search firms on Company’s behalf) from engaging in generalized solicitations of employment not targeted to employees of US Corrosion Services LLC, or from hiring respondents thereto.
2. PAYMENT TERMS
Payment terms for this engagement are as set forth in Exhibit A.
3. CHANGES
Customer may, with the approval of US Corrosion Services LLC, issue written directions (the “Change Order”) within the general scope of any Services to be ordered. The Change Order may be for additional work or may direct a change in work covered by the Task Order. Both parties must approve all Change Orders.
4. STANDARD OF CARE
US Corrosion Services LLC represents and warrants that: (a) the Services will be performed by qualified persons possessing competency consistent with applicable industry standards; (b) the Services will be provided in accordance with the terms set forth in Exhibit A; (c) US Corrosion Services LLC has full authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and this Agreement will not violate any other agreement to which US Corrosion Services LLC is or becomes a party, nor any law, court order, or decree to which US Corrosion Services LLC is subject; (d) the Services to be rendered in connection with this Agreement will not violate or in any way infringe upon any rights of third parties, including but not limited to any property, contractual, employment, proprietary information, or nondisclosure rights, and any copyrights, patents, trademarks, trade secrets, or other proprietary rights; and (e) there is no action, suit, proceeding, or material claim or investigation pending or threatened against US Corrosion Services LLC in any court, or by or before any Federal, state, municipal, or other governmental department, commission, board, bureau, agency, or instrumentality, domestic or foreign, or before any arbitrator of any kind, which if adversely determined, might adversely affect the Services or Work Product, or restrict US Corrosion Services LLC’s ability to consummate the transactions contemplated hereby or continue its obligations hereunder. Further US Corrosion Services LLC knows of no basis for any such action, suit, claim, investigation, or proceeding. No other representation, express or implied, and no warranty or guarantee is included or intended in this Agreement, or in any report, opinion, deliverable, work product, document otherwise. Furthermore, no guarantee is made as to the efficacy or value of any services performed or Work Product or other materials developed. THIS SECTION SETS FORTH THE ONLY WARRANTIES PROVIDED BY US CORROSION SERVICES LLC CONCERNING THE SERVICES AND RELATED WORK PRODUCT. SUCH WARRANTIES ARE MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY.
5. CONFIDENTIAL INFORMATION
5.1 Obligation: Neither party will use any Confidential Information of the disclosing party except as expressly permitted in or required by this Agreement or as expressly authorized in writing by the disclosing party. Each party shall use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than reasonable care. Neither party is allowed to disclose the other party’s Confidential Information to any person or entity other than the receiving party’s officers, employees, consultants, and legal advisors who need access to such Confidential Information to effect the intent of this Agreement. Each party agrees to ensure that any individual or entity receiving Confidential Information for or on behalf of such party under this Agreement will be bound by the terms of the Confidential Information provisions of this Agreement. Each party agrees to notify the other party promptly if it becomes aware of any unauthorized use or disclosure of Confidential Information and to provide reasonable assistance to such other party, and its licensors, in the investigation and prosecution of such unauthorized use or disclosure.
5.2 Return of Data. Upon termination or expiration of this Agreement, each party’s rights to use or possess Confidential Information automatically terminate immediately. Each party will return, or at the other party’s request provide verification of destruction of, any copy of any the other party’s Confidential Information it may possess.
6. INDEMNIFICATION
6.1 Acts of Personnel. US Corrosion Services LLC hereby promises and agrees to defend (or, at its option, settle), indemnify, and hold harmless from and against any claim arising out of bodily injury (including death) or damage to property (including loss of use of property and down time) that occurs as a result of the performance by US Corrosion Services LLC of the Services, including claims by third parties that relate to the Services, solely to the extent that such injury or damage is caused in whole or in part by the acts, errors, omissions, or negligence of US Corrosion Services LLC.
6.2 Intellectual Property. US Corrosion Services LLC shall defend (or, at its option, settle), indemnify, and hold Customer harmless from and against any claim brought by any third party against Customer for actual or alleged infringement of any patent, trademark, copyright, or similar property right (including, but not limited to misappropriation of trade secrets) solely to the extent it is based in whole or in part upon any Work Product.
6.3 Breach or Default. US Corrosion Services LLC shall defend (or, at its option, settle), indemnify, and hold Customer harmless from and against any and all claims and any and all losses, liabilities, damages, penalties, costs, and expenses (including reasonable attorney’s fees) sustained or incurred by Customer as a result of (i) any misrepresentation by US Corrosion Services LLC under this Agreement, or (ii) any breach or default by US Corrosion Services LLC with respect to any warranty, promise, agreement, duly, or obligation of US Corrosion Services LLC contained in this Agreement or owed by US Corrosion Services LLC pursuant to this Agreement provided however that with respect to part (ii) above US Corrosion Services LLC’ liability with respect to any such breach or default shall not exceed $1,000,000.
6.4 Exclusions; Customer Duties. US Corrosion Services LLC will have no indemnification obligation for any claim or portion of a claim pursuant to this Agreement solely to the extent that it results in whole or part from: (a) modification to the Work Product made by a party other than US Corrosion Services LLC; (b) failure of Customer to use updated or modified materials or recommendations provided by US Corrosion Services LLC to avoid a claim of infringement or misappropriation (provided that US Corrosion Services LLC provides Customer with reasonable notice as to the need to use such materials in conjunction with the Work Product); (c) combination by Customer of the Work Product with other systems, products, processes or materials to the extent that such claim would have been avoided without such combination use of the Work Product; (d) compliance by US Corrosion Services LLC with designs, plans or specifications furnished by or on behalf of Customer; or (e) claims due to the acts, errors, omissions, or negligence of Customer or a third party and not US Corrosion Services LLC. Each of US Corrosion Services LLC’ obligations to indemnify Customer pursuant to this Agreement shall only be valid provided that Customer (but not as a condition to the indemnification responsibilities set forth herein except to the extent that the failure to perform the following obligations materially affects US Corrosion Services LLC’ ability to defend such suit): (a) promptly notifies US Corrosion Services LLC in writing of the claim within 3 days of occurrence; (b) grants US Corrosion Services LLC sole control of the defense and settlement of the claim; and (c) provides US Corrosion Services LLC with all reasonable assistance, information and authority required for the defense and settlement of the claim.
7. LIMITATION OF LIABILITY
7.1 Limitation. Except for gross negligence or willful misconduct or for claims regarding indemnification, neither party’s liability, including but not limited to claims of contribution related to third party claims, for any losses, injury or damages arising out of or in connection with this Agreement and for any other claim, whether in contract, tort, statute, or otherwise, shall exceed the sum of fees paid by Customer for the Services giving rise to the liability during the one-year period immediately preceding the date the liability arose. Except for gross negligence or willful misconduct or for claims regarding indemnification, neither party shall be liable for any special, indirect or consequential losses, lost profits, or punitive damages.
7.2 Remedy. Customer agrees that its initial remedy for any claim arising out of or relating to this Agreement, without limiting any subsequent other rights or remedies Customer may have, will be for US Corrosion Services LLC, upon receipt of written notice, either (i) to use commercially reasonable efforts to cure, at its expense, the matter that gave rise to the claim for which US Corrosion Services LLC is at fault, or (ii) to return to Customer the fees paid by Customer to US Corrosion Services LLC for the particular Service provided that gives rise to the claim, subject to the limitation contained in Section 7.1 above.
8. TERM AND TERMINATION
The term of this Agreement shall be for two years from the Effective Date, unless earlier terminated by either party. The Agreement may be renewed for successive one-year terms upon the expiration of such term at US Corrosion Services LLC’ then-current rates subject to the provisions of Exhibit A. The parties agree that this Agreement shall apply to Services already performed and Work Product already created for Customer by US Corrosion Services LLC. This Agreement may be terminated by either party at any time, for any reason, with or without cause, upon 30 days’ written notice to the other party.
9. MISCELLANY
9.1 Assignment. Neither party may assign any of its rights or delegate any of its obligations under this Agreement, whether by operation of law or otherwise, without the prior express written consent of the other party. Assignment without such consent shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
9.2 Amendment. The terms and conditions of this Agreement may not be changed except by an amendment in writing, which references this Agreement and is signed by an authorized officer of each party. US Corrosion Services LLC pursuant to this Agreement provided however that with respect to part (ii) above in section (7.2) US Corrosion Services LLC’s liability with respect to any such breach or default shall not exceed $1,000,000.
9.3 Waiver. Other than by operation of law, no failure or delay by either party in exercising any right or remedy under this Agreement shall operate or be deemed as a waiver of any such right or remedy.
9.4 Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas.
9.5 Arbitration and Equitable Relief. The parties agree that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this Agreement, shall be settled by expedited, confidential arbitration to be held in the county of Harris County, Texas, in accordance with the rules of the American Arbitration Association (the “AAA”) then in effect. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. US Corrosion Services LLC and Customer shall each pay one-half of the costs and expenses of such arbitration, and each of the parties shall separately pay its counsel fees and expenses. Nothing herein shall prevent either party from seeking emergency equitable relief in a court of law if necessary.
9.6 Notices. All notices required under this Agreement must be in writing and refer to the title and Effective Date of this Agreement. Notices shall be effective upon delivery to the other party, and must be delivered in person, by facsimile, by national overnight courier, or by U.S. postal service postage prepaid, return receipt requested. All notices shall be sent to the address stated in this Agreement or at such other address as either party may provide by advance written notice in accordance with this subsection.
9.7 Independent Entities. The parties are independent entities. Neither party nor any consultant of either party shall be deemed to be an employee, agent, partner, joint venture, or legal representative of the other for any purpose, and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other, solely as a result of this Agreement.
9.8 Severability. Any provision of this Agreement that is held to be unenforceable in any jurisdiction shall be ineffective only as to that jurisdiction, and only to the extent of the unenforceability of such provision without invalidating the remaining provisions hereof.
9.9 Force Majeure. Neither party will be deemed to be in breach of this Agreement, or be entitled to damages or credits pursuant to this Agreement, for any failure or delay in performance caused by reasons beyond its control, which may include but are not limited to an act of God, war, civil disturbance, court order, labor dispute, failures or fluctuations in power, heat, light, air conditioning or telecommunications equipment.
9.10 Complete Understanding. This Agreement including all Exhibits, Schedules, and Change Orders constitute the final and complete agreement between the parties regarding the subject matter hereof, and supersede any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written.
9.11 Use By Third Parties. This Agreement does not create any rights or benefits for parties other than Customer and US Corrosion Services LLC.
9.12 Survival. The respective rights and obligations under the Sections headed Confidential Information, Termination, Warranties, Indemnification, and Limitation of Liability, in addition to any payment obligations incurred pursuant to this Agreement, shall survive the termination or expiration of this Agreement.
9.13 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.
9.14 Purchase Orders and Forms. The terms, provisions or conditions of any Change Order or any purchase order, invoice or associated documentation used by Customer will be governed solely and exclusively by the terms of this Agreement, regardless of any failure of US Corrosion Services LLC to object to those terms, provisions or conditions.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
By: _________________________________________________
RESPONSIBLE OFFICIAL– Position (e. Company Legal Name)
Date: f. (XX-XX-XXX)
By: ___________________________
JOSHUA JACKSON – CEO (US Corrosion Services LLC) Date: g. (XX-XX-XXXX)
EXHIBIT A – SERVICES AND PAYMENT TERMS
US Corrosion Services LLC agrees to provide the following professional services to Customer in connection with the Professional Services Agreement between the parties. Customer agrees to pay all specified fees and costs and otherwise to comply with all of the terms and conditions of the Professional Services Agreement.
Customer: h. Company Name Contact: i. POC
Address: J. Companies Physical Address
Phone: k. Telephone Number Fax: (If preferred) Email: l. POC Email Address
SCHEDULE 1: Current Services
US Corrosion Services LLC will provide customer with metallurgical consulting, testing, and analysis services on an as-requested basis, including but not limited to:
• Metallurgical consulting and failure analysis on an as-requested basis.
• Metallurgical testing of materials and components on an as-requested basis.
• Corrosion testing of components on an as-requested basis.
• Materials selection and metallurgical consulting analysis on an as-requested basis.
The parties may execute a Change Order pursuant to the Professional Services Agreement, further defining or adjusting the Services to be provided.
Consulting and Testing Rates: Per US Corrosion Services LLC standard price list (examples listed below)
Expert Metallurgical Consultant: $395/hour
Metallographic Preparation and photography: $150/hour
SEM and EDS Analysis: $300/hour
US Corrosion Services LLC will not increase such rate levels by more than 5% per year per level after the initial term of this Agreement.
Costs: Customer shall reimburse US Corrosion Services LLC for reasonable costs per-approved in writing (if over $100) and incurred in connection with the Services rendered (“Reimbursable Costs”). Reimbursable Costs include but are not limited to travel costs, office costs, machining or preparation, and may include materials attributable to a project or Service, as applicable.
Travel costs include air travel, lodging, meals and incidentals, ground transportation, and any other reasonable costs associated with travel. All travel or other costs pursuant to this Agreement for which reimbursement is sought must receive Customer’s prior approval. If requested by Customer, US Corrosion Services LLC will provide Customer with receipts or other evidence for each Reimbursable Cost.
Invoices: US Corrosion Services LLC will invoice Customer monthly or as needed. All invoices are due and payable in full within ten (10) days of Customer’s receipt of the invoice. Any invoice not paid within 15 days of the due date will be deemed late unless disputed by Customer in good faith as provided below, and will accrue late charges as of the date due. Late charges shall be at a rate of 1% per month, or the maximum rate allowed under law, whichever is lower, from the date such payment was due until the date paid. Customer agrees that it shall promptly notify US Corrosion Services LLC in writing of any dispute with any invoice. (Note: These terms are flexible, and we want to work with you and make sure our billing is accurate and you are satisfied. Please contact us for any issues or modification requests!)
Taxes: Customer shall be responsible for all sales taxes, use taxes and any other similar taxes and charges of any kind imposed by any federal, state or local governmental entity on the transactions contemplated by this Agreement, excluding U.S. federal and state and local taxes based solely upon US Corrosion Services LLC income and payroll. The parties shall indemnify, defend, and hold harmless the other party from any losses or liability due to nonpayment of taxes for which the party is responsible under this Agreement.
EXHIBIT B – US CORROSION SERVICES LLC PROPERTY
US Corrosion Services LLC Property includes:
- All hardware, software, components, and data associated with USC’s advanced hydrogen embrittlement testing and analysis technologies, including the RSL system
- All documentation for all US Corrosion Services LLC Products
Calibration Libraries for all US Corrosion Services LLC Products.