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1. Services. Subject to the terms and conditions of this Agreement, including payment of all applicable Fees, Pinnacle will use commercially reasonable efforts to: (a) conduct the evaluation services described in the Description (“Reviews”)with respect the individual employees of Company identified by the Company and who have opted in to participating in the Reviews (each a “Manager”), up to the number of Managers set forth in the Description in a professional and workmanlike manner; (b) provide development content to the Managers as set forth in the Description (“Development Content”); and (c) provide a final report summarizing the results of the Reviews of each Manager at the conclusion of the Term, as set forth in the Description (the “Final Report” and together with (a) and (b), the “ Services”). Pinnacle shall not be responsible for any delays in its performance under this Agreement that result directly or indirectly from the delay of either the Company or a third party service provider of the Company, including any delay resulting from Company’s failure to perform the Company Assistance set forth in the Description or provide data, information, access to Managers or personnel, and other assistance reasonably requested by Pinnacle that is necessary for Pinnacle to perform the Services.
2. FEES, EXPENSES AND PAYMENT
2.1 Fees and Expenses.In consideration of the Services to be performed under this Agreement,Company will pay Pinnacle the fees for the performance of Services, set forth in the Description and any associated sales or other taxes (the “Fees”).Company will pay all undisputed Fees and reimburse Pinnacle for all reasonable expenses in USD by check or wire transfer within net 30 days of the date of invoice in accordance with the remittance information contained on the invoice.Interest shall accrue at the rate of 1.5% per month on any undisputed invoiced amounts past due. Company shall notify Pinnacle within 30 days of the date of invoice if it disputes any amount contained in an invoice otherwise such amounts will be deemed undisputed and payable. If Company disputes any Fees,the Parties will work together in good faith to resolve such dispute.
2.2 Taxes.Company will: (a) pay all taxes, duties, import and export fees, and any other charges or assessments, except the withholding of income taxes, which are applicable to the performance of this Agreement and payable by Company; and (b)reimburse Pinnacle for any encumbrance, fine, penalty, or other expense which Pinnacle may incur as a result of Company’s failure to pay any such taxes, duties, fees,charges, or assessments. If any applicable law requires Company to withhold an amount from any payment to Pinnacle hereunder, Company shall effect such withholding, remit such amount to the appropriate taxing authority, and supply Pinnacle with a receipt of such payment within 30 days of its receipt by Company.
3. INTELLECTUAL PROPERTY
3.1 FinalReports. Company shall own, and Pinnacle hereby assigns, all right, title, and interest in and to any works of authorship and information embodied in the Final Reports;provided that the foregoing does not include any rights in or to: any works of authorship, inventions, trade secrets or know-how created, developed, or reduced to practice prior to or independent of the creation of any Final Reports that are embodied or incorporated in the Final Reports (“Background Materials”); provided that, notwithstanding anything to the contrary herein, nothing herein shall prevent Pinnacle from providing reports, feedback,suggestions, or strategies similar to those contained in any Final Report to any other customer to the extent that they do not include any Confidential Information of Company. Pinnacle hereby grants Company a perpetual,non-exclusive, non-transferable, non-sublicensable to use and reproduce the Background Materials solely as and to the extent incorporated into the Final Reports for Company’s internal business purposes in connection with Company’s use of the Final Reports. Pinnacle reserves all rights not expressly granted to Company in this Agreement.
3.2 License to Development Content. Pinnacle hereby grants to Company a perpetual, non-exclusive, non-transferable,non-sublicensable license for the Manager to whom the Development Content was provider to use and reproduce the Development Content solely for such Manager’s internal professional development purposes as employees of Company.
3.3 Company Data. As between Pinnacle and Company, Company retains all right,title, and ownership in and to all data provided by Company or Company’s personnel for purposes of Pinnacle’s performance of the Services (“Company Data”). Company agrees that Pinnacle may use Company Data as necessary to perform its obligations hereunder and Pinnacle may use anonymized Company Data and any general insights and know-how obtained from the performance of the Services, but not Confidential Information of Company, to improve it products and services. Company represents and warrants that it and its personnel have all necessary right to provide and grant the rights granted hereunder with respect to Company Data.
4. CONFIDENTIAL INFORMATION. Each party agrees to exercise no less than reasonable care to maintain the confidentiality of information disclosed by the other Party hereunder that should reasonably be expected to be treated in a confidential manner based on the circumstances of its disclosure or the nature of the information itself and to only use such information in connection with exercising its rights or performing its obligations hereunder; provided that: (a) the Company Data will be treated as the confidential information of Company; and (b) Pinnacle may use and exploit in any manner on a worldwide, irrevocable, perpetual, royalty-free basis, any suggestions, requests and feedback provided by or on behalf of Company regarding Pinnacle’s business, products, or services.
5. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PINNACLE PERFORMS THE SERVICES AND PROVIDES THE FINAL REPORTS “ASIS” AND MAKES NO WARRANTY, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AS TO ANY MATTER WHATSOEVER, INCLUDING WITH RESPECT TO THE ACCURACY, COMPLETENESS,USEFULNESS, OR EFFECTIVENESS OF ANY SERVICES PERFORMED, FINAL REPORTS PROVIDED, OR RESULTS OR INFORMATION GENERATED HEREUNDER OR ANY DECISIONS OR ACTIONS TAKEN BY COMPANY OR MANAGERS AS A RESULT OF ANY OF THE FOREGOING OR BASED ON ANY OF THE FOREGOING, AND PINNACLE EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6. INDEMNIFICATION. Company will defend or, at its option, settle, any claim brought against Pinnacle by a third party, including any Managers or Company personnel: (a) alleging that the use by or on behalf of Pinnacle of any Company Data and/or any data obtained by Pinnacle pursuant to a request from Company in accordance with this Agreement infringes or misappropriates any third party’s rights or violates any laws; or(b) arising out of or relating to any decision made by a Manager or Company based on or as a result of the Services. Company will pay all damages finally awarded against Pinnacle (or the amount of any settlement entered into or approved in writing by Company) with respect to such a claim. Pinnacle will provide Company with: (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Company in connection with the defense or settlement of, any such claim; provided that Company will not enter into any settlement, consent judgment, or other voluntary final disposition of such a claim that places any obligation on Pinnacle without Pinnacle’s prior written consent.
7. LIMITATION OF LIABILITY. Except with respect to a Party’s liability arising in connection with its obligations under Section 6 liability for a breach of Section 4, fraud or fraudulent misrepresentation, or intentional or criminal misconduct:(a) neither Party will be liable for loss of profits or revenues, loss of anticipated savings, loss of customers, loss of, or loss of use of any software or data, nor for any special, consequential or indirect loss or damage, costs,expenses or other claims for consequential compensation, howsoever caused,which arise out of or in connection with this Agreement or the services regardless of whether such Party has been apprised of the possibility of such damages; and (b) except for amounts due by Company hereunder, neither Party’s total liability arising under this Agreement shall exceed the amount paid to Pinnacle by Company during the 12 months prior to the event giving rise to the claim.
8. TERM AND TERMINATION. This Agreement will commence on the Effective Date and will continue for the period set forth in the Description unless earlier terminated in accordance with this Section 8 (the “Term”). Either Party may terminate this Agreement immediately upon written notice if: (a) the other Party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days of receipt of written notice specifying such breach; or(b) the other Party breaches its obligations hereunder related to the non-breaching Party’s intellectual property rights. Upon the termination or expiration of this Agreement: (i) Company shall remit any Fees owed to Pinnacle hereunder; (ii) Pinnacle will be under no further obligation to perform any Services or deliver any Final Reports under this Agreement; and (iii) Sections 2 through 7, and Section 9 will survive.
9. GENERAL TERMS
9.1 Assignment. Neither Party will assign or otherwise transfer its rights and/or obligations under this Agreement, in whole or in part, to a third party unless such assignment is approved in writing by the other Party; provided, however, that either Party may assign this agreement to any entity that acquires all or substantially all of its business or assets by merger, acquisition, sale, or reorganization; provided that the assignee agrees to be bound by all terms and conditions of this Agreement.
9.2 Force Majeure. Except for obligations to pay any Fees, nonperformance of either Party will be excused to the extent, and for so long as that performance is rendered impossible by strike, fire, flood, acts of God, governmental acts,orders or restrictions, acts of terrorism, war, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party and not due to its fault or negligence.
9.3 Notices.All notices hereunder shall be sent by the notifying Party, in writing, to the other Party by email at the email address set forth in the signature block, orat its address set forth above (or such other address as they may communicate to the notifying Party in writing). Notice shall be deemed delivered and effective: (a) when delivered personally or by email, (b) five (5) days after posting when sent by registered mail, or (c) one (1) day after posting when sent by reputable private overnight courier.
9.4 Relationship Between the Parties. In all matters relating to this Agreement, the Parties shall act as independent contractors. Neither Party will represent that it has any authority to assume or create any obligation, expressed or implied, on behalf of or act as agent, employee, or represent in any other capacity, the other Party.
9.5 Governing Law.This Agreement shall be governed by the laws of the State of California,without regard to choice of law rules, and each Party submits and consents to the exclusive jurisdiction and venue of the state and federal courts located in Santa Clara County, California.
9.6 Partial Invalidity; Waiver. If any provision of this Agreement is declared void, illegal, or unenforceable, the remainder of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law, and the unenforceable provision shall be enforced to the fullest extent possible to achieve its intended purposes. A waiver of any provision of this Agreement must be in writing and executed by the Party granting the waiver, and a Party’s waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default; provided that no failure of either Party to exercise any right hereunder or to insist upon strict compliance of the obligations hereunder and no custom or practice of the Parties shall constitute a waiver of either Party’s right to demand exact compliance with the terms of this Agreement.
9.7 Marketing and Publicity.Company will function as a client reference for Pinnacle (including by taking calls with potential customers or investors directed to Company by Pinnacle),providing a positive endorsement of Pinnacle and testimonials, allowing Pinnacle to identify Company as a client on Pinnacle’s website and marketing materials,and highlighting the benefits of the Services.
9.8 Entire Agreement; Headings; Counterparts. This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersede all prior agreements, arrangements, and undertakings between the Parties. No addition to or modification of any provision of this Agreement shall be binding upon the Parties unless made by a written instrument signed by a duly authorized representative of each of the Parties. Nothing contained in any purchase order will modify or add to the terms of this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which shall be deemed to be an original instrument.
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