1. Services to be provided. MS CONSULTING, LLC. (“Consultant”) will provide manufacturing operations consulting services (the “Services”) as described in the attached proposal (the “Proposal”) to the Customer identified in the Proposal (“Customer”) (Consultant and Customer hereinafter jointly referred to as “Parties” and individually as “Party”), subject to these terms and conditions (the “Terms and Conditions”). The Proposal and the Terms and Conditions shall hereinafter jointly be referred to as the “Agreement”. Consultant may engage other parties (“Subcontractors”) to provide some or all of the Services to the Customer, on behalf of Customer. Customer will take into account reasonable care in the selection of Subcontractors.

 

2. Customer Obligations. Customer will furnish to Consultant, in a timely manner, all information and documents necessary or useful to provide the Services, and Customer warrants the accuracy and completeness of such information and documents. Customer is responsible for knowing and complying with all laws, government regulations, and interpretations, as updated from time to time regardless of the Services provided by Consultant. Customer acknowledges that because of – possible – changes in inter alia the law, the Services as rendered by Consultant may not be fully or partially suitable for future use by Customer without updating. Unless explicitly agreed in writing and signed by Consultant and Customer, Consultant shall have no ongoing obligation towards Customer and/or third parties to update the Services.

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3. Payment. Customer shall pay the full amount due as specified in the Proposal on or before the due date. Payment can be made by electronic transfer or check. If payment is not made on time, late payment fees of 1.5% per month will be charged. Furthermore, Customer obliges itself to pay Consultant the reasonable costs such as attorney fees or other expenses in connection with the collection of any overdue amounts to be paid by Customer. In addition, Customer shall reimburse Consultant for reasonable incidental, out-of-pocket charges incurred by Consultant in the course of performing the Services; provided, however, that Consultant shall provide a reasonable estimation for such charges that Customer has approved in advance or as otherwise pre-approved in writing by Customer.

4. Deliverables. Customer shall receive the deliverables specified in the Proposal upon completion of the project. The deliverables shall be provided on or before the agreed-upon deadline(s) or milestone(s).

 

5. Proprietary Rights. In the course of providing the Services, Consultant may use its proprietary technology, programs, processes, report formats and other materials (the “Proprietary Materials”). Consultant retains all intellectual property rights, including any patents, copyrights, trade secrets, trademarks, trade names, or other intellectual property, in the Proprietary Materials and no license rights are granted under the Agreement. Customer may not reproduce, publish, modify, disassemble, decompile, reverse engineer, or create derivative works of the Proprietary Materials.

 

6. Confidentiality. “Confidential Information” includes all written information furnished or made available directly or indirectly by one Party to the other, which is marked confidential, restricted, and proprietary or with a similar designation, or information that by its nature would be considered confidential. The Parties agree that any Confidential Information provided under the Agreement must be maintained in strict confidence for a period of three (3) years from the date of disclosure, or as otherwise mutually agreed between the parties. Each Party agrees to protect the Confidential Information of the other Party in a manner consistent with the protections used to protect its own Confidential Information, but in no event will any Party observe less than a reasonable standard of care. If either Party becomes aware of any actual or possible unauthorized use or disclosure of any Confidential Information, that Party must notify the other Party thereof as soon as reasonably possible.

 

7. Indemnification by Customer. Notwithstanding any other provisions of the Agreement, considering that Customer is engaged in activities over which Consultant has no control, Customer will indemnify and defend Consultant against any and all claims, losses, damages and expenses, including its reasonable attorneys’ fees, arising from a third party claim against Consultant to the extent that such third party’s claim is based on a breach of the Agreement by Customer, which includes the negligent acts or omissions of Customer, its officers, employees, and agents.

 

8. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL (INCLUDING LOST PROFITS), INDIRECT, SPECIAL, MULTIPLE OR PUNITIVE DAMAGES WHATSOEVER. CONSULTANT’S AGGREGATE LIABILITY IN CONNECTION WITH THE AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY THE CUSTOMER TO CONSULTANT IN THE LAST THREE (3) MONTH PERIOD FOR THE PARTICULAR PROJECT IN WHICH THE RESPECTIVE DAMAGES AROSE. NO SUIT TO RECOVER FOR ANY CLAIM OR DEMAND HEREUNDER SHALL IN ANY EVENT BE MAINTAINED AGAINST CONSULTANT UNLESS A WRITTEN STATEMENT AND PROOF OF CLAIM IS PRESENTED TO CONSULTANT WITHIN SIXTY (60) DAYS FROM THE DATE OF DISCOVERY OF THE CLAIM, AND ANY SUIT TO RECOVER FOR ANY CLAIM MUST BE INSTITUTED WITHIN TWELVE (12) MONTHS AFTER COMPLETION OF THE SERVICES. CONSULTANT IS NOT LIABLE FOR THE CONSEQUENCES OF ANY ACTION TAKEN, OR FINES OR PENALTIES ASSESSED, BY ANY GOVERNMENTAL AGENCY AGAINST CUSTOMER.

 

9. Termination. Either Party may terminate this Agreement upon written notice if the other Party breaches any material term of this Agreement. In the event of termination, Customer shall pay for all Services performed up to the date of termination.

 

10. Compliance. Consultant shall carry out its duties and activities under and in connection with this Agreement in good faith, with due care, and in a diligent and conscientious manner, in accordance with highest industry standards. Both Parties shall comply with all applicable statutes, rules, regulations, orders and directives of any applicable governmental authority for the conduct of such duties and activities.

 

11. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the state where Consultant is located. Any disputes arising under this Agreement shall be resolved in the courts located in such state.

 

12. General. The Agreement can be modified or amended solely by written agreement signed by the Parties. If any provision of the Agreement is held to be illegal, invalid and/or unenforceable under present or future laws effective during the term of the Agreement, the other provisions of the Agreement remain applicable in full. Parties will, as soon as reasonably possible, replace any illegal, invalid and/or unenforceable provision with a valid and enforceable provision, which has the same or a comparable meaning as the invalid and/or unenforceable provision. The waiver or failure of either Party to exercise in any respect any right provided for in the Agreement is not a waiver of any further right under the Agreement. The Agreement contains the complete agreement between the Parties concerning the Services and supersedes all prior communications (including any previous proposals) between the Parties relating to the Services.