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DELETE IN ACTUAL CONTRACTS: This is the TATE™ Compendium version BAILEY, © 2009
D.C. Toedt III; all rights reserved. Distributed under a Creative Commons license described here.
See the on-line Drafter's Guide for word-processing tips, as well as the Revision history.
CAUTION: Don't rely on this document as a substitute for legal advice — ask your lawyer if it's
right for you. Your use of this document does not establish an attorney-client relationship be-
tween you and any author, editor, or provider of the document. See also the Cautions page.
<Title> AgreementParties: This Agreement is between <Party 1 name>, <entity type>, whose initial address
for notice is <address>; and <Party 2 name>, <entity type>, whose initial address for no-
tice is <address>. It is effective <the last date signed as written in the signature blocks
below>.
1. Background...........................................................................................................3
2. Definitions & usages..............................................................................................4
2.1 General definitions..................................................................................................4
2.2 'Corporate' definitions............................................................................................6
2.3 Software definitions................................................................................................7
2.4 Trademark definitions.............................................................................................8
3. Operations............................................................................................................9
3.1 [Services] Statements of work.................................................................................9
3.2 [Services] Standards of performance....................................................................10
3.3 [Services] Third-party approvals............................................................................10
3.4 [Services] Customer's rights in deliverables..........................................................11
3.5 [Services] Transfer of work-in-progress................................................................12
3.6 [Software] Licenses...............................................................................................12
3.7 [Software] Software maintenance.........................................................................14
3.8 [Software] Technical-issue support.......................................................................16
3.9 [Reseller] Authorization........................................................................................17
3.10 [Reseller] Operations............................................................................................19
3.11 [Reseller] Customer agreements...........................................................................20
3.12 Ordering procedures.............................................................................................21
3.13 Marketing efforts..................................................................................................21
3.14 Customer support by <Reseller>...........................................................................22
3.15 Training.................................................................................................................23
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 1 OF 97
4. Operations – supporting provisions....................................................................24
4.1 Audit procedures...................................................................................................24
4.2 Background checks................................................................................................26
4.3 Confidential information.......................................................................................26
4.4 Export controls......................................................................................................33
4.5 Force majeure.......................................................................................................34
4.6 Indemnities generally applicable...........................................................................36
4.7 Indemnity & defense procedures..........................................................................37
4.8 Infringement by third parties................................................................................39
4.9 Innovations — protection and ownership.............................................................40
4.10 Insurance requirements........................................................................................43
4.11 Personnel – certain matters..................................................................................45
4.12 Privacy : Gramm-Leach-Bliley Act provisions........................................................47
4.13 Privacy: HIPAA business-associate provisions.......................................................48
4.14 Publicity.................................................................................................................49
4.15 Recordkeeping requirements................................................................................50
4.16 Relationship management....................................................................................50
4.17 Site visits...............................................................................................................51
4.18 Staffing †...............................................................................................................52
4.19 Subcontractors......................................................................................................54
4.20 Trademarks...........................................................................................................55
5. Warranties & remedies.......................................................................................58
5.1 Defects..................................................................................................................58
5.2 Software performance..........................................................................................59
5.3 Infringement.........................................................................................................61
5.4 Other warranties...................................................................................................63
5.5 Warranty disclaimers and limitations....................................................................64
5.6 Indemnity re third-party warranty claims.............................................................65
5.7 Limitations of liability............................................................................................65
6. Financial provisions.............................................................................................68
6.1 Software license fees............................................................................................68
6.2 Pricing to Reseller..................................................................................................68
6.3 Pricing adjustments †............................................................................................70
6.4 Compensation for services....................................................................................71
6.5 Commission payments..........................................................................................72
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6.6 Payments..............................................................................................................73
6.7 Taxes.....................................................................................................................75
7. Dispute management..........................................................................................77
7.1 Breach...................................................................................................................77
7.2 Settlement encouragement..................................................................................78
7.3 Litigation management.........................................................................................80
7.4 Arbitration.............................................................................................................81
8. Termination.........................................................................................................85
9. General provisions..............................................................................................89
9.1 Amendments.........................................................................................................89
9.2 Assignment............................................................................................................90
9.3 Interpretation........................................................................................................93
9.4 Notices..................................................................................................................94
9.5 Other provisions....................................................................................................95
Revision history................................................................................................................98
Version AARON................................................................................................................98
Version ABIGAIL...............................................................................................................98
Version ADAM.................................................................................................................98
Version ADELE..................................................................................................................99
Version ADRIAN.............................................................................................................101
Version BADEN..............................................................................................................101
Version BAILEY...............................................................................................................101
1. Background
<Briefly summarize the background of the agreement, to give a later reviewer — for ex-
ample, a business executive or a judge — an introduction to what the parties had in
mind.>
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 3 OF 97
2. Definitions & usages
In addition to the definitions below, other terms may be defined "in-line" in the provi-
sions in which they are used.
2.1 General definitions
2.1.1 Claim, in connection with an indemnity- and/or defense obligation, is defined
broadly. [DEFGEN-CLM]
The term refers to: (1) any and all claims, counterclaims, cross claims, and the like for monetary or injunc-
tive relief in respect of any alleged or proven injury (including for example bodily injury or death) in or be-
fore any court, administrative agency, arbitration panel, or other forum having the legal power to adjudi-
cate disputes, and (2) any and all demands not yet matured into one or more of the foregoing.
2.1.2 Examples and including are inclusive, not limitations. [DEFGEN-EXMP]
Examples (and terms such as for example), as well as include and similar terms (e.g., including), are used in
this Agreement for purposes of illustration, not of limitation, unless another meaning is clear from the con-
text.
2.1.3 Include, etc. — see Examples. [DEFGEN-INCL]
2.1.4 Indemnify is defined broadly. [DEFGEN-INDEM]
IF: A provision of this Agreement obligates a party to indemnify another individual or organization against
one or more specific events— such as, for example, a third-party claim — but is not specific as to the types
of harm to be indemnified;
THEN: The obligated party will indemnify the individual or organization against all claims, liabilities, losses,
damages, penalties, actions, judgments, execution, costs, expenses, and disbursements, of any kind or na-
ture, arising out of the specified event(s). "Expenses" includes, for example, reasonable attorneys' fees, ex-
pert witness fees, and other expenses of litigation or arbitration.
2.1.5 Knowledge refers to actual knowledge. [DEFGEN-KNOW] †
Knowledge means actual knowledge; knows has a corresponding meaning.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 4 OF 97
2.1.6 Otherwise agreed requires a writing (with certain exceptions). [DEFGEN-OTHAGR] †
Otherwise agreed and its variations (for example, agreed otherwise) mean that the parties have agreed oth-
erwise in writing, for example in this Agreement, unless they have agreed — in writing — that, for that par-
ticular matter or class of matters, a non-written agreement otherwise is acceptable.
2.1.7 Party refers to an individual or organization entering into this Agreement. [DEFGEN-PRTY]
Party, unless otherwise clear from the context, refers to a signatory party, that is, an individual or organiza-
tion entering into this Agreement.
2.1.8 Person refers to an individual or organization, unless otherwise clear. [DEFGEN-PRSN]
Unless otherwise clear from the context, the term "person" means an individual, corporation, business
trust, estate, trust, partnership, limited liability company, association, joint venture, government, govern-
mental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.
2.1.9 Protected party refers to a party-beneficiary of an indemnity obligation or rem-
edy limitation. [DEFGEN-PRPRT]
A protected party is any signatory party that is the beneficiary of (i) an indemnity- and/or defense obligation
in this Agreement, or (ii) a limitation of remedies in this Agreement.
2.1.10 Protected person refers to a protected party and its employees, etc. [DEFGEN-PRPRSEMPL]
A protected party's protected persons are (1) the protected party itself and (2) its employees, officers,
directors, shareholders, general- and limited partners, members, and managers.
2.1.11 Protected person also includes a protected party's affiliates and their employ-
ees, etc. [DEFGEN-PRPRSAFFIL] †
The protected persons of a protected party also include its affiliates and their respective employees, officers,
directors, shareholders, general- and limited partners, members, and managers.
2.1.12 Seasonably: An action is taken seasonably if it is taken at or within the time
agreed or, if no time is agreed, at or within a reasonable time. [DEFGEN-SEASN]
2.1.13 Specified means as specified in the applicable clause title unless otherwise clear. [DEFGEN-SPECIF]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 5 OF 97
2.1.14 Stated — see specified. [DEFGEN-STATED]
2.1.15 Tax is defined broadly. [DEFGEN-TAX]
Tax refers to any United States federal, state or local or non-United States tax, assessment, charge, duty,
levy, or other similar governmental charge of any nature. The term includes, for example, (1) all income,
gross receipts, employment, franchise, profits, capital gains, capital stock, transfer, sales, use, occupation,
property, excise, severance, windfall profits, stamp, stamp duty reserve, license, payroll, withholding, ad
valorem, value added, alternative minimum, environmental, customs, social security (or similar), unemploy-
ment, sick pay, disability, registration, and other taxes, assessments, charges, duties, fees, levies or other
similar governmental charges of any kind whatsoever, whether disputed or not, together with (2) all esti-
mated taxes, deficiency assessments, additions to tax, penalties, and interest.
2.1.16 Tribunal refers to an adjudicatory body of competent jurisdiction. [DEFGEN-TRBN]
Such a body may be, for example, a court, arbitration panel, or an administrative agency acting in an adjudi-
catory capacity.
2.2 'Corporate' definitions
2.2.1 Affiliate status arises via a "control" relationship; minimum ownership for con-
trol is <50%>.[DEFGEN-AFFLCTRL]
(1) An affiliate of a first individual or organization is another individual or organization that controls, is con-
trolled by, or is under common control with, the first one, either directly or indirectly via one or more inter-
mediaries.
(2) For purposes of determining affiliate status, 'control' of an organization refers to ownership or voting
control of at least the specified percentage of the securities of the organization that are entitled to vote for
the election of directors or of comparable ownership interests in the organization.
2.2.2 Affiliate status also exists among the following specific persons: <None> [DEFGEN-AFFILPERS]
In addition to any other definition of "affiliate" in this Agreement (if any), the specified individuals and/or
organizations are deemed affiliates of the specified parties.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 6 OF 97
2.2.3 Affiliate status also extends to management-control relationships.
[DEFGEN-AFFILMGMT] †
For purposes of determining affiliate status, control of an organization also includes the power to direct the
business affairs of the organization by contract or otherwise.
2.3 Software definitions
2.3.1 Documentation refers to user documentation provided with software, including
any instructions for installing patches or upgrades. [DEFSOFT-DOC]
2.3.2 Harmful code refers to software such as (for example) viruses, bots, and the
like. [DEFSOFT-HARM]
Other examples include Trojan horses, worms, spyware, back doors, or any other software designed to per-
mit unauthorized access to, or to erase or otherwise harm, an individual's or organization's software, hard-
ware, or data without the individual's or organization's permission.
2.3.3 Level 1 support refers to "by the book" basic technical support for a product or
service. [DEFSOFT-LVL1]
Level 1 support involves providing customers, where applicable, with compatibility information, installation
assistance, general usage support, assistance with routine maintenance, and/or basic troubleshooting ad-
vice.
2.3.4 Level 2 support refers to more in-depth attempts to confirm the existence, and
identify possible known causes, of a defect in a product or an error in a service that is
not resolved by Level 1 support. [DEFSOFT-LVL2]
2.3.5 Level 3 support refers to advanced efforts to identify and/or correct a defect in
a product or an error in a service, which may require interaction with the provider's de-
velopment- or engineering team. [DEFSOFT-LVL3]
2.3.6 Licensed software refers to one or more specific items of software licensed by
order form(s) under this Agreement together with all upgrades thereto provided pur-
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 7 OF 97
suant to this Agreement. References to licensed software refer to each such item of soft-
ware independent of any other such item. [DEFSOFT-LICSFWR]
2.3.7 Server refers to each distinct instance of an operating system run on a particular
machine used as a server. [DEFSOFT-SRVR]
2.3.8 Specifications for software refers to (i) the software's documentation, together
with (ii) any additional written specifications for the software's performance that are ex-
pressly set forth and identified as such in a written agreement (for example, in an order
form). [DEFSOFT-SPECS]
2.3.9 Tier 1, 2, or 3 support — see Level 1, 2, or 3 support, respectively. [DEFSOFT-TIER]
2.3.10 Upgrade refers to any new release, revision, correction, modification, patch, or
fix of an item of software. [DEFSOFT-UPGD]
The term includes both major and minor upgrades of the relevant software, such as upgrades with a change
in the number either to the left or right of the decimal point in the version number or with a designation
such as "Service Pack 1."
2.4 Trademark definitions
2.4.1 Trademark refers to trademarks, service marks, and trade names. [DEFTMK-TMK]
Examples of trademarks include brand names; designs; domain names; and logos.
2.4.2 Licensed trademark refers to <the trademarks of <Trademark-Owner> listed in
Schedule X>.[DEFTMK-LTMK]
2.4.3 Licensed product or licensed service refers to any product or service of <Trade-
mark-User> identified by any licensed trademark by authority of this Agreement.>
[DEFTMK-LPRSR]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 8 OF 97
3. Operations
3.1 [Services] Statements of work
3.1.1 Services will be provided solely as set forth in any written statement(s) of
work that may be signed by the parties in their discretion. [SRV-SOW]
3.1.2 The statement of work attached as <Exhibit X> is deemed signed by the parties.
[SRV-SOWEXH]
3.1.3 A written change order, signed by the parties, is required to amend a statement
of work. [SRV-SOWCHG]
3.1.4 Electronic signatures for statements of work and change orders (for example via
an exchange of emails) are permitted. [SRV-ELECSIG]
3.1.5 Each statement of work is a separate contract unless otherwise agreed.
[SRV-SOWSEPK]
3.1.6 Significant additional customer requests may call for written change orders
and/or compensation adjustments. [SRV-SIGREQ]
Provider reserves the right, in appropriate cases, to require that Customer requests not covered by a state-
ment of work be supported by a written change order and/or an adjustment in compensation.
3.1.7 Each statement of work is deemed to implicitly require that Provider perform
all individual tasks necessary for the proper performance of the services described in the
statement, even if one or more of such individual tasks is not expressly set out there.
[SRV-SOWIMPL] †
3.1.8 Provider will provide reasonable cooperation with Customer, at its request, if
Customer elects to perform itself some or all of the services described in a statement of
work. [SRV-COOPCUST] †
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 9 OF 97
3.1.9 Provider will provide reasonable cooperation with other Customer contrac-
tors, if so requested by Customer, in their provision of goods or services for Customer.
[SRV-COOPK] †
(1) For the avoidance of doubt, Customer is free to engage other contractors, and/or to use Customer's
own personnel and resources, to provide goods or services.
(2) For the avoidance of doubt, this clause is not to be deemed as requiring Provider to share its confidential
information with other Customer contractors unless expressly agreed otherwise.
3.2 [Services] Standards of performance
3.2.1 Provider will cause all services to be performed in a <workmanlike> manner in
accordance with the applicable statement of work.(See also the "Warranties & reme-
dies" section.) [SRV-WKM]
For purposes of this Agreement, "workmanlike" means skillful; competent; well-executed; worthy of a good
workman; but not necessarily outstanding or original.
3.2.2 Provider will take <responsible> measures to guard against introducing harm-
ful agents into Customer's business environment(s), such as for example pollutants and
computer viruses. [SRV-VIR]
3.3 [Services] Third-party approvals
3.3.1 Provider is responsible for obtaining customary third-party approvals such as
licenses, permits, etc. [SRV-3PAPP]
Unless otherwise agreed, for example in the applicable statement of work, Provider will be responsible for
both identifying and obtaining each customary third-party approval, if any, such as (for example) permits, li-
censes, consents, permissions, and the like, that may be required for performance of the services.
3.3.2 Provider is responsible for obtaining intellectual-property licenses only as
stated below or as otherwise agreed. [SRV-3PIPLIC]
Unless otherwise agreed, for example in the applicable statement of work, Provider's obligation to obtain
third-party approvals extends to any third-party patent, copyright, or other intellectual property right only if
(A) the statement of work specifies otherwise, or (B) Provider warrants noninfringement as to such right.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 10 OF 97
3.3.3 If a potentially-necessary third party approval cannot be obtained, but Cus-
tomer wishes to proceed anyway and Provider agrees to do so, then Customer will de-
fend and indemnify Provider from any claims by the third party. [SRV-3PAPPNA]
IF: A third-party approval potentially required for the services cannot be obtained; THEN:
(1) The parties will confer about how to proceed, which may require renegotiating the economic terms
and/or the work-order schedule;
(2) IF: Provider reasonably takes the position that a particular third-party approval may be necessary
for Provider to perform the services; BUT: Customer states in writing that, in its view, the approval is not re-
quired; THEN:
(A) Provider will not be in breach if it declines to proceed with performing the relevant aspect of the ser-
vices; and
(B) IF: Provider elects to proceed without the approval; THEN: Customer will defend, indemnify, and hold
harmless Provider and its protected persons from all claims by that third party arising from the lack of
that approval.
3.4 [Services] Customer's rights in deliverables
3.4.1 Customer's rights in deliverables: Customer has <the perpetual, paid-up,
worldwide right to utilize and further develop> any deliverables delivered to it pursuant
to this Agreement except as may be otherwise agreed. [SRV-CUSTRTSDEL]
Except as otherwise agreed, Customer will have the specified right (1) to utilize in its business, as it sees fit,
all items expressly required to be delivered by Provider pursuant to the statement of work, and (2) if so
stated, to further develop any such item.
3.4.2 Contracting for further development: Customer also has the right to engage
third-party contractors to further develop deliverables. [SRV-CUSTKFRTHDEV] †
3.4.3 Customer is not restricted from contracting with Provider's competitors for the
further development of deliverables. [SRV-CUSTKCOMP] †
3.4.4 Customer may assign its rights in deliverables under this Agreement <solely in
connection with a sale or other disposition of its relevant business assets>. [SRV-CUSTASSRTSDEL]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 11 OF 97
3.5 [Services] Transfer of work-in-progress
3.5.1 Provider will transfer all undelivered work product, both completed and in-
progress (collectively, work in progress), to Customer or its designee (i) if Customer ter-
minates a statement of work <for breach by Provider>, or (ii) if this Agreement or a
statement of work otherwise calls for Provider to do so. [SRV-XFRWIP] †
As part of such a transfer, Provider will make reasonable efforts (i) to provide a documentary 'snapshot' of
the status of the work being transferred and (ii) otherwise to provide reasonable cooperation in an orderly
transition and knowledge transfer.
3.5.2 Provider need not transfer work-in-progress if Customer is in breach of this
Agreement. [SRV-XFRWIPNA] †
3.5.3 Customer will compensate Provider for transferring work-in-progress by (i) re-
imbursing Provider's reasonable out-of-pocket expenses actually incurred for the trans-
fer, and (ii) paying Provider a fee for services as follows: If the transfer is due to
Provider's breach: <XX% of Provider's regular rates>. Other transfers: <100% of
Provider's regular rates>. [SRV-XFRWIPCOMP]
3.6 [Software] Licenses
3.6.1 Licenses will be granted through mutually-agreed order forms; each license so
granted will be <a non-exclusive, worldwide, perpetual license to use the executable
form only> of the relevant software unless otherwise agreed. [SFTLIC-GRORDFRM]
3.6.2 Provider hereby grants Customer a <non-exclusive, worldwide, perpetual, roy-
alty-free> license to use <the executable form of the licensed software on a single com-
puter,> subject to the terms and conditions of this Agreement. [SFTLIC-GRNT]
3.6.3 Licenses granted are revocable only for nonpayment of the license fee or viola-
tion of Provider's intellectual property rights. [SFTLIC-RVCRSTR]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 12 OF 97
3.6.4 The software is licensed, not sold; likewise, the software's user documentation
and all copies of the software and documentation. [SFTLIC-LICNTSLD]
Provider or its supplier(s) retain all rights not granted by this Agreement.
3.6.5 Maintenance expiration will not terminate the license. [SFTLIC-MNTEXPTERM]
3.6.6 Provider will deliver <a copy> of the licensed software and the relevant docu-
mentation and of any necessary license codes, <promptly after the parties have signed
this Agreement or, if applicable, the relevant order form>. [SFTLIC-DLVR]
This obligation applies if Customer does not already have copies (e.g., in the form of trial versions).
3.6.7 Customer has internal-use and backup rights unless otherwise agreed. [SFTLIC-BKUP]
(1) Customer may use the licensed software (i) for its internal business use, and (ii) for reasonable disaster-
recovery and disaster testing purposes that does not amount to production use. (2) Customer may make a
reasonable number of copies for backup and disaster-recovery purposes.
3.6.8 Customer's contractors who are not otherwise licensed to use the licensed soft-
ware may use it for Customer's benefit as though they were employees of Customer,
but only in strict accordance with this Agreement. [SFTLIC-CUSTK]
3.6.9 Customer will preserve the software in confidence. [SFTLIC-CNFD]
The licensed software, its user documentation, and copies thereof are the confidential property of Provider
or its suppliers. Customer will use reasonable measures to preserve them in confidence, including giving
them at least the same degree of protection that it gives to its own comparable confidential information.
3.6.10 Acceptance testing <is complete > (but any applicable warranty rights remain in
effect in accordance with their terms). [SFTLIC-ACCEPT]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 13 OF 97
3.7 [Software] Software maintenance
3.7.1 Software maintenance entitles Customer to technical-issue support; upgrades;
and general, help desk-type user support. [SFTMNT-DEF]
Software maintenance entitles Customer to (1) technical-issue support for the licensed software in accor-
dance with the "Technical-issue support" section of this Agreement; (2) any and all upgrades for the li-
censed software that may be released for general licensing availability in Provider's discretion; and (3) gen-
eral help desk-type user support in accordance with Provider's then-current support program.
3.7.2 Support for superseded versions of <Software> will continue for at least <12
months> after the date on which Provider makes a superseding version generally
available for licensing. [SFTMNT-SUPSPRSD] †
3.7.3 Support for discontinued <Software> will continue for <12 months> after
Provider no longer makes the discontinued Software generally available for licensing. [SFTMNT-SUPDSCT] †
3.7.4 Provider will give Customer at least <three months'> prior written notice be-
fore discontinuing maintenance support for an item of <Software>. [SFTMNT-DRPNOT]
3.7.5 Provider will refund any unused maintenance fees <upon request> after dis-
continuance of maintenance support for an item of <Software>. [SFTMNT-DRPRFND] †
The unused portion of a paid maintenance fee will be determined by pro-rating it on a monthly basis as of
the date of discontinuance of maintenance support.
3.7.6 Provider will endeavor to provide post-discontinuance support on request on
an as-available basis. [SFTMNT-PSTDSCT]
IF: Provider discontinues maintenance support for an item or superseded version of licensed software;
THEN:
(1) Upon Customer's written request, and where practicable, Provider will endeavor to provide mainte-nance support for that item or version on an as-needed basis.
(2) The availability of this additional support is subject to factors such as the availability of appropriately-knowledgeable Provider personnel.
(3) Provider reserves the right to charge a mutually-agreed additional fee for this additional support.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 14 OF 97
3.7.7 Lists of supported versions will be provided at Customer's reasonable request. [SFTMNT-LSTSUP]
When reasonably requested by Customer from time to time, Provider will furnish Customer with a list of
the versions of the licensed software that are available for licensing and eligible for maintenance support.
3.7.8 IF: A <material> breach of Provider's maintenance obligations remains un-
cured for <30 days> after notice by Customer, THEN: Customer may terminate mainte-
nance by notice, in which case Provider will refund a pro-rata portion of the relevant
maintenance fee, pro-rated as of the date of notice of breach. [SFTMNT-BRCHTRM]
3.7.9 Customer's EXCLUSIVE REMEDY for breach of Provider's maintenance obliga-
tions is the above refund right (subject to any warranty-refund provisions that may also
apply. [SFTMNT-EXCLRMD]
3.7.10 Provider may automatically renew Customer's maintenance if Customer does
not opt out in writing no later than <the current expiration date> after receiving at least
<60 days> prior renewal notice. [SFTMNT-AUTORNW] †
3.7.11 IF: Provider does not automatically renew Customer's maintenance; THEN: It
will so advise Customer in writing.> [SFTMNT-NNRNEWNOT] †
3.7.12 Provider will make maintenance support available to Customer for <each item
of Software> for at least <three years> after the date of this Agreement, subject to
Customer's meeting any preconditions stated herein. [SFTMNT-CMTMT] †
3.7.13 Maintenance-renewal pricing increases may not exceed <5% year-over-year for
3 years after the date of this Agreement>, subject to Customer's meeting any precondi-
tions stated herein. [SFTMNT-RNWCAP] †
3.7.14 Customer must remain continuously on maintenance <for all seats or other li-
cense units > to remain eligible for <the above maintenance-availability and price-in-
crease caps>. [SFTMNT-CNTMNT] †
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 15 OF 97
3.7.15 Customer commits to remaining continuously on maintenance <for all seats or
other license units > for the duration of Provider's commitments above. [SFTMNT-CMTMNT] †
In exchange for Provider's commitment(s) above concerning maintenance availability and -pricing increases,
Customer agrees that Provider may renew maintenance, for the stated quantity of license units, and that it
will timely pay Provider's invoices for such renewals, so that Customer remains continuously on mainte-
nance for the stated period.
3.8 [Software] Technical-issue support
3.8.1 Provider will <use commercially-reasonable efforts to> supply Customer with a
correction and/or work-around for any technical issue with the <Software> that
(i) Provider can reproduce and (ii) is reported to Provider by Customer <using Provider's
Web-based trouble ticket system> (iii) during a period when this Agreement makes Cus-
tomer eligible for technical-issue support; any such technical issue is referred to as a
supported issue. [TKIS-CRR]
Eligibility periods may include, for example, warranty periods and maintenance periods.
3.8.2 Provider will reimburse Customer upon request for its reasonable out-of-
pocket costs actually incurred in supplying information requested by Provider about a
supported issue. [TKIS-REIMB]
3.8.3 Provider will respond to supported issues as follows; all cases will be treated as
standard support unless expressly agreed otherwise. [TKIS-SLA]
SEVERITY LEVEL REQUIRED INITIAL REPORTING METHOD
TARGETED TIME TO CONFIRM RECEIPT
PROVIDER'S EFFORTS TO SUPPLY A CORRECTION OR WORKAROUND
Critical: A system, server or ma-jor application is down or seri-ously affected, or data is lost or corrupted.
<Telephone> Standard support: <1 business hour>.
Premium support: <1/2 hour>.
Standard support: <High pri-ority during working hours>.
Premium support: <High pri-ority 24 x 7; update reports every 4 hours upon request>.
High: A system, server, or appli-cation is impaired, affecting end-user business productivity.
<Telephone> Standard support: <4 business hours>.
Premium support: <2 business hours>.
Standard support: <High pri-ority during working hours>.
Premium support: <High pri-ority 12 x 5; update reports every business day upon re-quest>.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 16 OF 97
SEVERITY LEVEL REQUIRED INITIAL REPORTING METHOD
TARGETED TIME TO CONFIRM RECEIPT
PROVIDER'S EFFORTS TO SUPPLY A CORRECTION OR WORKAROUND
Medium: A non-critical, limited problem that does not hinder end-user business operations.
E-mail, Web, or phone.
Standard support: <8 business hours>.
Premium support: <4 business hours>.
Regular priority during work-ing hours; updates upon re-quest at reasonable intervals.
Low: Non-critical problems or general questions.
E-mail, Web, or phone.
<1 business day>. Regular priority during work-ing hours; updates upon re-quest at reasonable intervals.
3.8.4 Severity level determinations will be made by Provider using its reasonable
judgment, taking into account information furnished by Customer about the importance
and urgency of the issue as well as Provider's available resources. [TKIS-SEVDTRM]
3.8.5 Customer's failure to supply information about a supported issue that is rea-
sonably requested by Provider will equitably extend Provider's correction deadlines. [TKIS-INFONA]
3.8.6 Customer cooperation may affect Provider's ability to respond to a supported
issue. [TKIS-CUSTCOOP]
Provider's support commitment is necessarily predicated: (i) on Customer's making appropriate employees
or contractors available at its site to work with Provider's technical support representative(s); and (ii) on
Customer's using corresponding efforts to furnish Provider with diagnostic and test information as Provider
may reasonably request. ¶ During any period of time that Customer is unable to do these things, Provider
reserves the right to treat Customer's issue as having a lower severity level.
3.9 [Reseller] Authorization
3.9.1 Reseller is authorized to purchase, and to resell, on <a non-exclusive> basis, to
customers in <the United States> (the Territory), during the <one-year> period following
the date of this Agreement, the Provider <products and services listed in Schedule X>
(the <Products and Services>). [RSLR-AUTH]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 17 OF 97
3.9.2 Reseller's authorization will be automatically renewed for successive <one-
year periods> unless <either party> gives notice of non-renewal <no more than two
months> before expiration. [RSLR-RNW] †
3.9.3 If Reseller does not purchase at least an aggregate of <$XX of Product and $YY
of Services> from Provider per <six-month period>, beginning the effective date of this
Agreement, then <Provider may terminate this Agreement>. [RSLR-SLSTGTS] †
3.9.4 Reseller <may> purchase <Products and Services> from other resellers and/or
through other Provider distribution channels. [RSLR-BUYCH]
3.9.5 Reseller <may> sell <Products and Services> to other resellers and/or into
other Provider distribution channels. [RSLR-SELLCH]
3.9.6 Reseller <may> offer and/or sell products and/or services that compete with
the <Products and Services>. [RSLR-CMPTOK] †
3.9.7 Provider may offer and/or sell <Products and Services> directly to customers,
in any customer or industry segment and any geographic territory <other than the Terri-
tory>. [RSLR-PRVCUST] †
(1) For example, Provider may enter into agreements with other resellers and other distribution channels,
and/or engage in direct marketing and -sales.
(2) For the avoidance of doubt, Provider need not give Reseller notice, nor compensation, nor any right of
first refusal, for any such business.
3.9.8 Provider is free to make changes to the line of <Products and Services> it offers,
in its sole discretion. <If Provider does so, it will seasonably advise Reseller.> [RSLR-CHGPRD] †
For example, Provider may add or drop products or services of modify existing ones, without obligation to
Reseller.
3.9.9 Provider and/or its suppliers retain all rights in Products. [RSLR-PRDRTS]
For the avoidance of doubt, Reseller does not acquire any ownership right in the physical embodiments or
intellectual property rights of any Products, all title to which remains in Provider and/or its suppliers.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 18 OF 97
3.10 [Reseller] Operations
3.10.1 Reseller may use Products, at no charge, <solely> for demos and Reseller's in-
ternal training>. [RSLR-USE]
Otherwise, Reseller will not use any Products in any manner unless Reseller has obtained the appropriate li-
cense(s) from Provider. Uses prohibited (if unlicensed) include, for example, production use for Reseller’s
own benefit and service-bureau use for the benefit of any Reseller customer.
3.10.2 Reseller will send sales-forecast reports to Provider approximately <10 days be-
fore the end of each calendar month>, in such form as Provider may reasonably pre-
scribe from time to time. [RSLR-SLSFCST] †
3.10.3 Reseller will report any potential infringement by Provider, of third-party intel-
lectual property rights, to Provider as soon as possible after the same comes to Re-
seller's notice. [RSLR-RPTINFR]
For the avoidance of doubt, this clause does not require Provider to take any particular action in response
to such a report.
3.10.4 Reseller will not engage in deceptive or illegal practices in offering and selling
the <Products and Services>.[RSLR-DCPT]
3.10.5 Reseller will defend and indemnify Provider against all claims arising from Re-
seller's alleged engaging in deceptive or illegal practices. [RSLR-DCPTINDEM] †
3.10.6 Reseller will not alter any Product without Provider's prior written approval.
[RSLR-NOALT] †
3.10.7 Reseller has no authority to, and will not, (i) make any representation on be-
half of Provider, nor (ii) offer any warranty or modification of a warranty on behalf of
Provider, without Provider's express written authorization in either case. [RSLR-NOREP]
For the avoidance of doubt, Reseller may furnish prospective customers with written and/or graphic materi-
als that are either (i) furnished by Provider, or (ii) authorized in writing by Provider for use by Reseller in
promoting sales. See also the independent-contractor provisions in the "General provisions" section of this
Agreement.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 19 OF 97
3.10.8 Reseller will defend and indemnify Provider against any third-party claims aris-
ing out of Reseller's breach of clause 3.10.7.
3.10.9 Reseller may not reverse engineer, etc., any Products. [RSLR-NOREVENG †
Reseller may not copy, disassemble, decompile, or reverse engineer Products, nor assist or knowingly per-
mit others to do so.
3.10.10 Reseller will not obligate Provider to the U.S. Government, as a subcontractor
or otherwise, if Reseller elects to resell <Products or Services> to the Government, nor
will Reseller make any related representation, warranty, or certification on Provider's
behalf. [RSLR-NOUSGOVT] †
See also the independent-contractor provisions of this Agreement.
3.10.11 <Reseller> will not disparage Provider or its products or services to customers,
potential customers, or the public. [RSLR-NODSPRG] †
3.10.12 <Reseller> will not participate in comparative-product reviews involving any
product or service of Provider. [RSLR-NOCMPRV] †
3.11 [Reseller] Customer agreements
3.11.1 Reseller will ensure that its customers for Services agree to terms of service
furnished, presented, or approved in writing by Provider, as a pre-condition of their
purchase of Services. Provider's current approved terms of service are attached as Ex-
hibit X.> [RSLR-TOS] †
3.11.2 Provider's current approved terms of service for Services are attached as <Ex-
hibit X.> [RSLR-TOSATT]
3.11.3 Reseller will ensure that its customers for Provider's software agree to the
then-current end-user license agreement presented, furnished, or approved in writing
by Provider, as a condition of and prerequisite to using the software. [RSLR-EULA]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 20 OF 97
3.11.4 Provider's current approved end-user license agreement is attached as
<Exhibit X.> [RSLR-EULAATT]
3.11.5 Provider may modify its <terms of service and/or end-user license agreement>
for end customers from time to time in its sole discretion. [RSLR-PRVMODAGR] †
3.11.6 Provider will seasonably advise Reseller if it modifies its <terms of service
and/or end-user license agreement> for end customers. [RSLR-PRVMODAGRNOT] †
3.11.7 No modification of Provider's <terms of service and/or end-user license agree-
ment> for end customers will apply to <service commitments or licenses> already resold
by Reseller without the approval of the relevant end customer(s). [RSLR-PRVMODAGRGFWD] †
3.12 Ordering procedures
3.12.1 Orders must be in writing.
Each order must include such information as Provider may reasonably request, including for example the
following where applicable: (i) unit quantity; (ii) unit price; (iii) shipping destination; (iv) requested delivery
date; and (v) any other relevant information. [ORD-WRI]
3.12.2 Orders are effective only upon written acceptance by Provider.
Acceptance may be by email or other electronic form at Provider's option. [ORD-WRACC]
3.13 Marketing efforts
3.13.1 <Reseller> will comply with all reasonable marketing guidance by Provider in
relation to the promotion and advertisement of the <Products and Services>. [MKT-GDNC]
3.13.2 Provider will furnish <Reseller> with <reproducible> copies of its marketing
materials, of such type(s) as Provider may determine in its discretion, at Reseller's re-
quest. [MKT-REPRCOP]
Such marketing materials may include, for example, instruction books, catalogues, circulars, and other pro-
motional or technical material.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 21 OF 97
3.13.3 Provider will invoice Reseller for copies of marketing materials Provider fur-
nishes, at Provider's then-standard rates. [MKT-INVCOP]
3.13.4 Reseller may cause duplicates of Provider's marketing materials to be made, of
the same quality as the originals or as otherwise specified in writing by Provider.
[MKT-COPAUTH]
3.13.5 Reseller will submit a marketing plan, <30 days in advance of each calendar
quarter,> for approval by Provider<, not to be unreasonably withheld>.[MKT-RSLRPLAN] †
(1) Each marketing plan is to set out Reseller's proposed targets and marketing activities for the upcoming
period, in such format and including such information as Provider may reasonably specify. (2) At Provider's
request from time to time, Reseller will review and discuss its performance progress relative to the market-
ing plan.
3.13.6 Reseller will review its marketing plan with Provider from time to time at
Provider's reasonable request. [MKT-RSLRPLRV] †
3.13.7 Reseller will supply representative samples, at Provider's request from time to
time, of all marketing materials used to promote Products or Services. Provider may
inspect, test, and/or dispose of such samples in its discretion. [MKT-REPSMPL]
3.13.8 Reseller will cease using any marketing materials used to promote Products or
Services <promptly upon written request from Provider>.[MKT-MTLSTP]
3.14 Customer support by <Reseller>
3.14.1 <Reseller> will provide <Level 1> customer support for its customers in a
prompt, courteous, and professional manner. [CUS-RSLRLV1] †
3.14.2 Provider will endeavor to assist Reseller in providing customer support, to the
extent consistent with Reseller's primary responsibility for doing so for its customers.
[CUS-LV1PRVHLP] †
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 22 OF 97
3.14.3 Provider will provide Level 2 support for Reseller, and when reasonably re-
quested by Reseller, for Reseller's customers. [CUS-PRVLV2]
3.14.4 <Reseller> will forward significant trouble reports and customer feedback con-
cerning <the Products and Services> to Provider at its request <using automated facili-
ties specified by Provider>.[CUS-FDBK]
In addition, upon request by Provider from time to time, Reseller will brief Provider orally about any cus-
tomer feedback and/or trouble reports received by Reseller in other than written form. ¶ For the avoidance
of doubt, this clause does not obligate Provider to take any particular action about any given item of cus-
tomer feedback or trouble report.
3.14.5 Provider at its option may, but need not, monitor <Reseller>'s customer sup-
port through the use of "mystery shoppers" and the like. [CUS-MSTSHP] †
Such monitoring, if any, will be for Provider's benefit only and not for that of Reseller, any Reseller cus-
tomer, or any other individual or organization. ¶ Reseller shall not disclose Provider's monitoring, if any, nor
its right to do so, to any third party.
3.15 Training
3.15.1 Reseller will ensure that its <sales- and customer-support personnel> undergo
training as follows: <describe requirements>. [TRG-RQD] †
3.15.2 Reseller may not engage in offering or selling Products or Services until the
training referred to in clause 3.15.1 has been completed. [TRG-PREREQ] †
3.15.3 Reseller is responsible for all travel- and lodging expenses for its personnel in
attending Provider-related training. [TRG-RSLREXP]
3.15.4 Reseller will pay Provider's standard training fees for its personnel attending
Provider-related training. ¶ Provider's current training-fee schedule is attached as Ex-
hibit X.> <Provider may adjust its training fees in its discretion from time to time.> [TRG-FEES] †
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 23 OF 97
4. Operations – supporting provisions
4.1 Audit procedures
4.1.1 Audits must be conducted at <reasonable times and places> during normal
business hours. [AUD-RSNBLPL]
Except as may be otherwise agreed, each audit will be conducted (i) during normal business hours, (ii) at
reasonable times designated by the auditing party in consultation with the recordkeeping party, (iii) where
the records are kept in the ordinary course of business, or other reasonable location designated by the
recordkeeping party in consultation with the auditing party.
4.1.2 The recordkeeping party will provide reasonable access to relevant documents
and personnel. [AUD-RSNBLACC]
For each audit, the recordkeeping party will: (i) provide the auditing party with reasonable access to its rele-
vant documents and records; and (ii) at the auditing party's request, direct its relevant personnel to provide
reasonable information to the auditing party about the records in question and the matters recorded
therein.
4.1.3 The auditing party may retain copies of relevant records, in strict confidence. [AUD-RECRETAUDPTY] †
The auditing party may make and keep copies of the recordkeeping party's relevant records; if it does so, it
will (1) preserve the copies and their contents in strict confidence; (2) not use or disclose them except to the
minimum extent necessary to protect its rights under this Agreement; (3) instruct its relevant employees
concerning its confidentiality obligations; and (4) contractually obligate any outside auditing personnel to
abide by such obligations.
4.1.4 The maximum audit frequency is <once in any 12 consecutive months>
<EXCEPT for good reason clearly shown>. [AUD-MAXFREQ] †
4.1.5 The deadline for requesting an audit of records for a given period is <one year
after the end of the period> <EXCEPT for good reason clearly shown>. [AUD-DDLN] †
4.1.6 One audit only is permitted for records for a given period <EXCEPT for good rea-
son clearly shown>. [AUD-ONEONLY] †
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 24 OF 97
4.1.7 Audit purpose: Audits are permitted only for the purpose of <confirming that
the recordkeeping party has fulfilled its obligations under this Agreement>. [AUD-PERMPURP]
4.1.8 Auditor qualifications: All audits must be conducted by <independent certified
public accountants or other qualified independent professionals> unless otherwise
agreed. [AUD-QUAL] †
4.1.9 Auditor acceptability: The auditor(s) for each audit must be reasonably accept-
able to the recordkeeping party. [AUD-ACCAUD] †
4.1.10 Unrelated confidential information need not be disclosed to the auditor(s). [AUD-UNRLCONF]
For the avoidance of doubt, the recordkeeping party need not provide the auditing party or its agents with
access to proprietary or confidential information concerning the recordkeeping party's other customers,
clients, or business associates.
4.1.11 Overcharges will bear interest <on the same terms as late payments under this
Agreement>. [AUD-OVRCHGINT] †
IF: An audit reveals that incorrect billing by the recordkeeping party resulted in a net overpayment to the
recordkeeping party by the auditing party;
THEN: the recordkeeping party will pay interest to the auditing party on the overpayment, from the date
(over)paid by the auditing party until the date repaid by the recordkeeping party, on the specified terms.
4.1.12 Expense-shifting: The recordkeeping party will reimburse audit expenses if the
audit reveals either (1) a disparity greater than <5%>, or (2) a material breach of this
Agreement. [AUD-EXPSHT] †
The recordkeeping party will reimburse the auditing party for reasonable audit expenses actually incurred if
the audit reveals either: (1) a net disparity for the period being audited, in favor of the recordkeeping party
and resulting from the recordkeeping party's error, of at least the specified amount; or (2) a material breach
of this Agreement by the recordkeeping party.
4.1.13 Customer may conduct reasonable audits, in confidence, of records that
Provider is required to be kept by this Agreement. [AUD-SHRTFRM]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 25 OF 97
4.2 Background checks
4.2.1 Background checks are required, at Customer's expense, on <all Provider em-
ployees and subcontractors who will work on-site at Customer's premises>, if so re-
quested by Customer. [BKCK-RQD] †
Provider will comply with relevant privacy law in respect of information learned in this screening.¶ Unless
otherwise agreed, the specified party will pay or reimburse, as applicable, all reasonable out-of-pocket ex-
penses incurred in connection with any background check required by this Agreement.
4.2.2 Drug testing is required as part of a background check upon reasonable written
request by Customer. [BKCK-DRGTST] †
4.2.3 Personnel with adverse background information must be specifically approved
by Customer. [BKCK-ADVINF] †
Subject to any requirements of law (for example, anti-discrimination law), in performing its obligations un-
der this Agreement, Provider will obtain Customer's prior written approval before utilizing any individual for
whom a background check reveals materially adverse information (for example, an arrest or conviction of a
felony or of a misdemeanor involving fraud or moral turpitude).
4.2.4 Provider will defend and indemnify Customer against any claims arising from
the conduct of Provider's background checks pursuant to this Agreement. [BKCK-INDEMN] †
Such claims include, for example, claims by government agencies and/or by private individuals.
4.3 Confidential information
4.3.1 <Each party's> confidential information is protected under this Agreement.
[CONFID-WHOSE] †
Any access to a disclosing party's confidential information by a receiving party pursuant to this Agreement is
governed by the terms and conditions of this Agreement.
4.3.2 Confidentiality is presumed until shown otherwise. [CONFID-PRSMD] †
For the avoidance of doubt, a party asserting that particular information of a disclosing party, subject to this
Agreement, is not confidential, must come forward with evidence of the same.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 26 OF 97
4.3.3 Confidential information must be marked as such no later than <five business
days after> the information's initial disclosure>.[CONFID-MKGRQMT]
Unless otherwise agreed, no item of the disclosing party's information will be deemed confidential, even if
otherwise eligible, unless a copy, clearly marked as confidential, is provided to the receiving party, prefer-
ably at the time the information is initially made available to the receiving party, and in any case no later
than the specified time (if any).
4.3.4 Catch-up marking requires notice to the receiving party. [CONFID-MKG-CTCHP] †
In the interest of reducing possible confusion, if a required marked copy of confidential information is not
provided as part of (or at the same time as) initially making the information available to the receiving party,
then the disclosing party must also give notice to the receiving party, in accordance with the notice provi-
sions of this Agreement, that the information is confidential.
4.3.5 Information clearly recognizable as confidential need not be marked as such.
[CONFID-MKG-CLRRCGN] †
IF: This Agreement requires confidential information to be marked as such;
THEN: That requirement does not apply to information that would clearly be recognizable as confidential by
a reasonable person in the position of the receiving party.
4.3.6 The disclosure period is <the one-year period following the effective date of this
Agreement>.[CONFID-DSCLPRD] †
IF: This Agreement limits protection to information disclosed during a disclosure period; THEN:
(1) Unless expressly agreed otherwise, the term "confidential information" in this Agreement applies only to
otherwise-eligible information to which the receiving party initially gains access from the disclosing party
(directly or indirectly) during the specified disclosure period.
(2) The disclosure period may be extended by written agreement.
4.3.7 <Either party> may terminate the disclosure period by giving at least <five busi-
ness days'> notice. [CONFID-DSCLPRD-TRMN]
(1) The specified party or parties may terminate the disclosure period at any time, for any reason or no rea-
son, by giving the specified notice to the other party.
(2) For the avoidance of doubt, early termination of the disclosure period will not end any existing confiden-
tiality obligations for information disclosed before termination.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 27 OF 97
4.3.8 The receiving party's notes, etc., will likewise be treated as disclosing-party con-
fidential information. [CONFID-RCVPTYNTS]
For the avoidance of doubt, the receiving party's notes and other documents are to be treated as confiden-
tial information of the disclosing party to the extent they contain such information.
4.3.9 Affiliate confidential information is protected if conspicuously identified as
such. [CONFID-AFFILINF]
Confidential information of the disclosing party's affiliate(s), conspicuously identified as such, is subject to
this Agreement in the same manner as that of the disclosing party.
4.3.10 Exclusions from confidentiality: The "standard five" exclusions apply. [CONFID-EXCLSNS]
(1) Confidential information does not include information shown to be or to have been:
(A) published or otherwise generally known by relevant segments of the public; or
(B) known by the receiving party before obtaining access to it under this Agreement; or
(C) provided to the receiving party by a third party not under an obligation of confidence benefiting the
disclosing party; or
(D) independently developed by the receiving party without use of the disclosing party's confidential
information; or
(E) disclosed by the disclosing party to a third party without confidentiality obligations comparable to
those of this Agreement.
(2) For the avoidance of doubt, a specific selection or combination of information will NOT be deemed ex-
cluded from confidential-information status, even if some or all of its component parts are individually
within one of the foregoing exclusions, UNLESS the selection or combination itself and its economic value
and principles of operation are themselves within such an exclusion.
4.3.11 Exclusions must be proved by either documentary evidence or clear and con-
vincing evidence. [CONFID-EXCLSNS-PRFRQMT] †
A party wishing to show that particular information falls within an exclusion from confidential information
status must do so (1) by documentary evidence that amounts to a preponderance of the evidence, or failing
that, (2) by clear and convincing evidence.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 28 OF 97
4.3.12 Unauthorized uses or disclosures are prohibited. [CONFID-UNAUTH-USEDSCL]
Except (i) <to facilitate a potential transaction between the parties>, or (ii) as otherwise authorized by the
disclosing party, the receiving party will not (1) use confidential information, nor (2) disclose confidential in-
formation except to its employees, officers, and directors, on a need-to-know basis.
4.3.13 Unauthorized access attempts are prohibited. [CONFID-UNAUTH-ACC]
The receiving party will not attempt to access confidential information maintained by the disclosing party
other than as authorized by this Agreement or by the disclosing party.
4.3.14 Confirmation of confidential information to others is prohibited. [CONFID-CNFRM]
Unless the disclosing party consents in advance, the receiving party may not disclose or confirm, to any
third party, any correlation or similarity between confidential information and information from any other
source.
4.3.15 The receiving party will promptly report to the disclosing party any (1) unau-
thorized access or use of confidential information, and/or (2) demands for, or attempts
at, the same. [CONFID-RPTRQMT] †
(1) To the extent not prohibited by law, the receiving party will promptly advise the disclosing party if it
learns of (or reasonably suspects) actual or attempted access to or use of confidential information that is
not authorized by the disclosing party.
(2) Some illustrative examples: Actual or attempted misappropriation by a third party; issuance of a sub-
poena seeking disclosure of confidential information; service of a search warrant resulting in disclosure of
confidential information.
4.3.16 Disclosures to wholly-owned subsidiaries of the receiving party, acting as its
subcontractors, are permitted on a need-to-know basis, subject to all confidentiality
obligations of this Agreement. [CONFID-DSCL-SBSD] †
(1) Such disclosures are also subject to any applicable legal restrictions, for example, in the export-control
laws.
(2) The receiving party may own such subsidiaries directly or indirectly, but its ownership must be 100%.
(2) For the avoidance of doubt, this provision does not authorize the receiving party to use subcontractors
other than such subsidiaries.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 29 OF 97
4.3.17 Subpoenas, etc., by third parties: The receiving party must promptly advise, and
provide reasonable cooperation with, the disclosing party in any such event. [CONFID-SBPNAS]
It will not be a breach of this Agreement for the receiving party to disclose confidential information to the
minimum extent required by law (for example, in response to a subpoena, or in a securities filing), provided
that the receiving party:
(1) advises the disclosing party as far in advance of such a disclosure as practicable, and
(2) takes reasonable steps, and provides reasonable cooperation with any efforts by the disclosing party, to
limit the disclosure or obtain legal protection for the information to be disclosed.
4.3.18 Expiration — confidentiality obligations expire <five years after the effective
date of this Agreement>, EXCEPT FOR (a) trade secrets, or (b) as required by law.
[CONFID-EXPIR] †
Except as otherwise agreed:
(1) The receiving party's confidentiality obligations under this Agreement will expire automatically as speci-
fied.
(2) Such obligations will not expire automatically:
(A) for any item or combination of items of confidential information that, at the time in question,
qualifies as a trade secret as defined in applicable law, nor
(B) where applicable law requires continued confidentiality of the information in question.
4.3.19 Expiration exception — information timely designated also remains subject to
confidentiality obligations. [CONFID-EXPIR-DESIGN]
IF: This Agreement provides for confidentiality obligations to expire automatically at a certain time; THEN:
Such obligations will not expire for any item or combination of items of confidential information that is
specifically so designated by the disclosing party. Any such designation must be (1) reasonably detailed, and
(2) set forth in a written notice delivered to the receiving party before the confidentiality obligation would
otherwise automatically expire.
4.3.20 Return or destruction of confidential information is required after expiration of
the disclosure period or termination of this Agreement, whichever comes first, and is to
be completed and certified <a reasonable time thereafter>.[CONFID-RTNDSTR] †
Except as otherwise agreed:
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 30 OF 97
(1) The receiving party will seasonably cause either (i) the return to the disclosing party, or (ii) the destruc-
tion, of all copies of the disclosing party's confidential information — including for example copies in the re-
ceiving party's notes, etc. — that are in the possession, custody, or control of (x) the receiving party, and
(y) any individual or entity that obtained confidential information from the receiving party.
(2) The receiving party will seasonably provide the disclosing party with a written certification of return or
destruction.
(A) The certification is to be signed by an officer or other individual authorized to bind the receiv-
ing party.
(B) The certification shall note any known exception cases of copies of confidential information
that are neither returned nor destroyed, and for each case, whether or not the exception is autho-
rized by this Agreement.
4.3.21 Backup tapes, etc., are exempt from any return-or-destruction requirement
(with restrictions). [CONFID-BKUPEXMPT]
IF: This Agreement requires confidential information to be returned or destroyed; THEN: "Remnant" confi-
dential information stored in system-type media, such as for example system caches and email backup
tapes, need not be returned or destroyed, so long as the media (1) are maintained in confidence, (2) are not
readily accessible to users, and (3) are periodically overwritten or otherwise destroyed in the ordinary
course of business.
4.3.22 Backup tapes, etc., must be overwritten or destroyed within <three years>.[CONFID-BKUPDSTRC] †
Any system-type media containing confidential information of the disclosing party (for example, email
backup tapes) that are not returned or destroyed must be overwritten or otherwise destroyed no later than
the specified time after the receiving party becomes obligated to return or destroy confidential information.
4.3.23 An outside-counsel archival copy may be maintained <indefinitely>.[CONFID-OUTCOUNARCH] †
For the specified time after the receiving party is required to return or destroy confidential information, its
outside counsel may maintain, under counsel's direct- or indirect control, a set of archive-only, outside-
counsel-only copies of the confidential information.
4.3.24 Retention required by law is permitted <indefinitely>. [CONFID-RETLAW] †
IF: This Agreement requires confidential information to be returned or destroyed; THEN: The receiving party
need not do so to the extent that applicable law requires its retention.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 31 OF 97
4.3.25 Retention advised by counsel is permitted <indefinitely>. [CONFID-RETCNSL] †
IF: This Agreement requires confidential information to be returned or destroyed; THEN:
(1) The receiving party need not do so to the extent that the receiving party's outside- or in-house counsel
advises that it be retained for possible use in legal or administrative proceedings involving the receiving
party.
(2) Neither the receiving party nor its counsel has any obligation to provide the disclosing party with infor-
mation about the content of such advice, other than the fact that receiving party is retaining information on
that basis.
4.3.26 Any copies of confidential information not returned or destroyed remain sub-
ject to this Agreement's confidentiality obligations. [CONFID-RTNSBJ]
For the avoidance of doubt:
(1) IF: The receiving party, for any reason, does not return or destroy particular copies of confidential infor-
mation; THEN: The receiving party's use and/or disclosure of such information continues to be governed by
the terms and conditions of this Agreement, notwithstanding any termination or expiration of the Agree-
ment.
(2) This clause does not negate any obligation of the receiving party to return or destroy confidential infor-
mation.
4.3.27 The receiving party's freedom of action is not impaired except for the specific
obligations of this Agreement. [CONFID-FRDMACT] †
For the avoidance of doubt, this Agreement does not restrict the receiving party's right to (i) develop, ac-
quire, market, and/or sell technologies, products, or services similar to or competitive with those of the dis-
closing party, and/or (ii) to have one or more such things done for it by third parties, unless doing so would
violate one or more specific obligations of this Agreement.
4.3.28 Receiving-party personnel assignments are not restricted except for the spe-
cific obligations of this Agreement. [CONFID-PERSASSGN]
For the avoidance of doubt, apart from the specific obligations hereof, this Agreement does not require a
receiving party to limit the duties of any of its personnel who gain access to confidential information of the
disclosing party.
4.3.29 Residuals may be freely used by receiving-party personnel. [CONFID-RESID] †
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 32 OF 97
SUBJECT TO any applicable patent rights, copyrights, or mask work rights, a receiving party is free to use any
confidential information of a disclosing party that may be retained in the unaided memory of its personnel,
without payment or other obligation to the disclosing party, SO LONG AS the personnel (1) do not refer to
any without reference to any written, electronic, or other fixed form of the information and (2) do not in-
tentionally remember the information for that purpose.
4.3.30 General knowledge may be freely used by receiving-party personnel.
[CONFID-GENKNOWL] †
Subject to any applicable patent rights, copyrights, or mask work rights, a receiving party is free to use
and/or disclose any generalized ideas, concepts, know-how, processes, or techniques (referred to as general
knowledge) that its personnel may learn by virtue of their access to confidential information of the disclos-
ing party.
4.3.31 The receiving party's information is not protected under this Agreement. [CONFID-NORCVPTY] †
For the avoidance of doubt, the disclosing party is under no obligation of confidence with respect to any in-
formation of the receiving party or its affiliates except (1) if and as expressly agreed otherwise, or (2) if and
as provided by law.
4.3.32 No warranties are made for confidential information unless expressly stated. [CONFID-NOWRNTY]
All confidential information is provided AS IS, WITH ALL FAULTS, WITH NO WARRANTIES EXPRESS OR
IMPLIED, except to the extent expressly stated otherwise in this Agreement.
4.3.33 No license rights are granted in confidential information, etc., unless expressly
stated. [CONFID-NOLIC]
This Agreement does not grant any license rights (nor ownership rights) of any kind, in confidential informa-
tion or other intellectual property, except to the extent it expressly states otherwise.
4.4 Export controls
4.4.1 <Each party> will comply with applicable export- and re-export restrictions con-
cerning covered items (defined in the detailed provision).
The specified party or parties (each, a complying party) will not export or re-export, directly or indirectly,
any commodity, software, or technology obtained or created pursuant to this Agreement (covered item) ex-
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 33 OF 97
cept in compliance with law, including for example obtaining any necessary licenses. NOTE: Under U.S. law,
unauthorized exports can occur, among other ways, by physical shipment; by electronic transmission; or by
transfer or disclosure to a non-U.S. citizen within the U.S. [EXPT-CMPL]
4.4.2 The complying party will not export or re-export covered items to prohibited
destinations or restricted persons. [EXPT-DESTPERS]
The complying party will not export or re-export covered items to:
(1) any "restricted person," defined as any person listed on any government list that would prohibit its ac-
cess to a covered item, including for example:
(A) the U.S. Department of the Treasury's list of Specially Designated Nationals, and
(B) the U.S. Department of Commerce Denied Persons List or Entity List; or
(2) any U.S.-embargoed countries.
4.4.3 The complying party <warrants> that it can legally engage in export transac-
tions. [EXPT-LGLENG]
The complying party makes the stated certification that: (A) it is not a restricted person; (B) it is not a citizen
or resident of any U.S.-embargoed country; and (C) it has not had its export privileges suspended, revoked,
or denied by any governmental authority.
4.4.4 The complying party will not engage in prohibited uses of covered items. [EXPT-NOPRBUS]
The complying party will not use covered items, nor permit or knowingly assist in their use, for any purposes
prohibited by United States law, including, without limitation, the development, design, manufacture or
production of nuclear, missiles, or chemical or biological weapons.
4.4.5 The complying party will provide written assurances upon request. [EXPT-WRASSR]
The complying party will, upon request, at its own expense, provide the other party with written assurances
and other export-related documentation as may be reasonably required to comply with law.
4.5 Force majeure
4.5.1 Force majeure may be invoked by <either party> upon the occurrence of a qual-
ifying event — beyond its reasonable control and the effects of which it could not rea-
sonably have avoided — that prevents or delays its performance. [FMAJ-WHO]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 34 OF 97
(1) Nonperformance or delayed performance by a specified party will be excused as being due to force ma-
jeure, and any associated performance deadlines will be appropriately extended, if:
(A) the failure resulted from one or more events and/or conditions beyond the reasonable con-
trol of the nonperforming party, and
(B) the failure-causing effect of the event(s) and/or condition(s) could not reasonably have been
avoided by the nonperforming party.
(2) Events of force majeure include, for example: fires; floods; hurricanes, tornadoes, and other storms;
earthquakes; acts of war, whether declared or undeclared, including for example civil war; sabotage; acts or
threats of terrorism; riots; acts of a public enemies; invasions; blockades; insurrections; boycotts; national-
ization; interruption or failure of electrical power systems or of telecommunications service (for example,
Internet failures); and failure of suppliers, subcontractors, and carriers to substantially meet their perfor-
mance obligations.
4.5.2 Force majeure includes labor- or industrial disturbances. [FMAJ-LBR]
Events of force majeure also include, as additional examples, strikes, lockouts, work slowdowns, labor un-
rest, and similar industrial disturbances — for the avoidance of doubt, nothing in this clause should be con-
strued as requiring a party to prevent, settle or otherwise avoid or terminate any such event.
4.5.3 Force majeure includes sustained, substantial cost increases that make the cost
of performance unreasonable. [FMAJ-CST]
4.5.4 Status updates for force-majeure situations will be provided upon reasonable
request. [FMAJ-STSUPD] †
IF: A party invokes force majeure (pursuant to this Agreement or applicable law, as the case may be);
THEN: If so requested by the other party, the invoking party will provide reasonable information, from time
to time, about its efforts — if any — (1) to perform its obligations under this Agreement, and/or (2) to
remedy or mitigate any delay in or failure of such performance.
4.5.5 Mitigation: A party claiming force majeure must make <reasonable efforts> to
mitigate its effects. [FMAJ-MITIG] †
A party claiming force majeure as an excuse for nonperformance or delayed performance must use the
specified efforts to mitigate the effects of the force-majeure event(s).
4.5.6 Late payments receive only limited force-majeure excuse. [FMAJ-LPMT]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 35 OF 97
Failure to pay amounts due under this Agreement may be excused under this section if, but only if, the fail-
ure resulted from failure of or interruption in one or more third-party payment systems that otherwise
qualifies as a force-majeure event.
4.5.7 <Either party> may terminate this Agreement if force-majeure problems persist
for <more than X months>. [FMAJ-TRMN]
IF: One or more force-majeure events materially prevents or -delays a party's performance of its obligations
for the specified time;
THEN: The specified party may terminate this Agreement by giving written notice to the other party.
4.6 Indemnities generally applicable
4.6.1 Injury indemnity [narrow version]: Provider will defend and indemnify Cus-
tomer and its protected persons from third-party claims arising from death, bodily in-
jury, or loss of or damage to property that is caused by Provider's> performance of its
obligations or exercise of its rights pursuant to this Agreement. This obligation is re-
ferred to as the injury indemnity. [INDGEN-INJNRW] †
4.6.2 Injury indemnity [broad version]: Provider will defend and indemnify Customer
and its protected persons from third-party claims of death, bodily injury, or loss of or
damage to property <arising from> Provider's> performance of its obligations or exer-
cise of its rights pursuant to this Agreement. This obligation is referred to as the injury
indemnity. [INDGEN-INRBRD] †
4.6.3 The injury indemnity obligation extends to claims arising out of Customer's al-
leged negligence or gross negligence<, except for claims arising solely out of the same>.
[INDGEN-CSTNEG] †
4.6.4 Provider's aggregate liability under the injury indemnity will not exceed $X.
[INDGEN-AGGRLIAB] †
4.6.5 Uninsurable claims are excluded from the injury-indemnity obligation.
[INDGEN-UNINSCLM]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 36 OF 97
4.6.6 Business-activities indemnity: <Reseller> will defend and indemnify Provider
against third-party claims arising out of <Reseller's> business activities, except any such
claims for which this Agreement expressly makes Provider responsible. [INDGEN-BUSACT] †
4.6.7 <Reseller's> aggregate liability under the business-activities indemnity will not
exceed X dollars .> [INDGEN-BUSACT-AGGRLIAB] †
4.6.8 Uninsurable claims are excluded from the business-activities indemnity obliga-
tion of section 4.6.8. [INDGEN-BUSACT-AGGRLIAB] †
4.7 Indemnity & defense procedures
4.7.1 Applicability: This section governs all indemnity- and defense obligations arising
under this Agreement. [INDMPR-APPL]
The provisions of this section govern all obligations arising under this Agreement (if any) that require a party
("indemnifying party") to defend an individual or organization ("protected person") against a claim made by
another individual or organization.
4.7.2 The indemnifying party will provide a competent defense against the claim for
the protected person if so requested in writing by the protected person. [INDMPR-CMPTDF]
For the avoidance of doubt, this defense obligation applies, without limitation, to any claim brought in a
judicial, arbitration, administrative, or other proceeding, including for example any relevant appellate
proceedings in which the claim is at issue.
4.7.3 If the protected person does not request a defense against the claim, the in-
demnifying party may elect, its sole discretion, to provide a defense anyway. [INDMPR-DSCRDF]
4.7.4 The indemnifying party is entitled to control the defense, subject to the limits
set forth below. [INDMPR-CTLDF]
4.7.5 The protected person must not (i) make any non-factual admission concerning
the claim; nor (ii) waive any defense to the claim (for example, a statute-of-limitations
defense); without the indemnifying party's consent. [INDMPR-NOADM]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 37 OF 97
4.7.6 The protected person must cooperate in the defense, at the indemnifying
party's expense. [INDMPR-COOPDF]
The protected person will be reimbursed by the indemnifying party for reasonable out-of-pocket expenses
actually incurred in doing so.
4.7.7 Any delay in requesting a defense will only absolve the indemnifying party from
liability for harm resulting specifically from the delay. [INDMPR-DLY]
The indemnifying party will not be liable for any harm to a protected person resulting specifically from the
protected person's failure to request a claim defense or delay in doing so.
4.7.8 The indemnifying party will control settlement, within limits. [INDMPR-CTLSTLMT]
(1) The indemnifying party will have the right to control settlement of the claim.
(2) Except as provided bellow, the indemnifying party may not settle the claim as to a protected person
without the protected person's prior written consent, not to be unreasonably withheld or delayed.
EXCEPTION: The indemnifying party may settle the claim as to a protected person without the protected
person's consent if the settlement terms impose no obligation nor prohibition on the protected person,
other than a payment funded entirely by one or more individuals or organizations other than the protected
person.
4.7.9 A protected person may engage separate monitoring counsel, at its own ex-
pense. [INDMPR-SPMNCNSL]
(1) A protected person may engage separate counsel, at its own expense, to monitor the defense of the
claim. The indemnifying party will instruct its counsel to consult with such counsel on a reasonable basis.
(2) Except as otherwise agreed in writing, in this Agreement or elsewhere, the indemnifying party need not
reimburse or indemnify the protected person for expenses of engaging separate counsel.
4.7.10 A protected person may assume control of its defense, but at its own risk and
expense. [INDMPR-ASMCTLDF]
(1) IF: A protected person disagrees with the indemnifying party's strategy or tactics for the conduct of the
defense; THEN: The protected person may assume control of the defense, at its own expense, by giving
written notice to the indemnifying party.
(2) IF: The protected person assumes control of the defense pursuant to the previous subparagraph; THEN:
The indemnifying party will have no further responsibility or liability to the protected person (including for
example indemnity liability) in respect of the claim in question.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 38 OF 97
4.7.11 In cases of conflict of interest that would disqualify defense counsel, a pro-
tected party may hire separate counsel at the indemnifying party's expense. [INDMPR-DSQL]
IF: The protected person's interests become sufficiently different from those of the indemnifying party, or
from those of another protected person, that the defense counsel appointed by the indemnifying party to
defend the protected person should withdraw because of a conflict of interest;
THEN: The protected person may engage separate counsel, in which case: (A) the indemnifying party will in-
demnify the protected person for reasonable fees and expenses of the separate counsel; and (B) each party
will instruct its counsel to make reasonable efforts to minimize duplication of effort and expense.
4.7.12 The indemnifying party will indemnify the protected person against all mone-
tary awards resulting from the claim. [INDMPR-DMG]
Unless otherwise agreed, the indemnifying party will indemnify the protected person against all monetary
awards of any kind, made or imposed by any authority having jurisdiction, resulting from the claim in ques-
tion, in a final judgment or award from which no further appeal is taken or possible. This includes, for exam-
ple, damages, penalties, interest, and attorneys-fee awards.
4.8 Infringement by third parties
4.8.1 <Reseller> will report potential third-party infringement of Provider's intellec-
tual property rights <in the Territory> to Provider as soon as possible after it comes to
Reseller's notice. [INFRTPTY-RPT]
4.8.2 <Reseller> will take all steps reasonably requested by Provider, at Provider's
expense, to help Provider protect its intellectual-property rights <in the Territory>
against third-party infringers. [INFRTPTY-HLP]
4.8.3 <Reseller> may initiate legal action against potential third-party infringers of
Provider's intellectual-property rights <in the Territory>, at its own expense, IF AND
ONLY IF Provider, in its sole discretion, expressly approves such action in writing. [INFRTPTY-RSLRSTRT] †
Provider will join such action as a party plaintiff if required by law.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 39 OF 97
4.8.4 Any monetary recovery, in an action by <Reseller> against a third-party in-
fringer of Provider's intellectual-property rights <in the Territory>, <will be shared by the
parties in proportion to the expenses of the action respectively borne by them> [INFRTPTY-MONRCVR] †.
4.9 Innovations — protection and ownership
4.9.1 The terms innovation and creation (used as nouns) encompass inventions,
works of authorship, and trade secrets. [INNV-DFN]
For purposes of this section:
(1) The term "innovation" refers to each of the following: (i) an invention, whether or not patentable or
patented; (ii) a work of authorship copyrightable in the U.S. or elsewhere, whether or not registered or reg-
istrable; (iii) a trade secret.
(2) The terms "create" and "creation," (i) in respect of an invention or trade secret, refers to the conception
or reduction to practice thereof; (ii) in respect of a work of authorship, refers to fixation of the work, in
whole or in part, in a tangible medium of expression.
4.9.2 Provider will own any innovations it may create in performing its obligations
under this Agreement except as otherwise agreed. [INNV-PRVOWN]
4.9.3 Provider's ownership in innovations relating to this Agreement, if any, is sub-
ject to Customer's rights in deliverables hereunder. [INNV-SBJCSTM]
4.9.4 Customer owns any innovations by Provider that are <embodied in, and as a
practical matter unlikely to be usable apart from, a deliverable under this Agreement>
("covered innovations").[INNV-CSTMOWN] †
Unless expressly agreed otherwise, the specified owner owns all right, title, and interest in and to each
specified innovation created in the course of performing services pursuant to this Agreement by the speci-
fied innovator and or its subcontractors, if any. Each such innovation is referred to here as a "covered inno-
vation."
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 40 OF 97
4.9.5 Full payment is required as a condition of ownership of covered innovations.
[INNV-CSTMPMT] †
The specified owner's ownership interest will arise only, and are expressly conditioned, upon its full pay-
ment of the relevant amount(s) due to the innovator.
4.9.6 Covered innovations are works made for hire to the extent permitted by law.
[INNV-WKFRHR]
Unless expressly agreed otherwise, any innovation owned by the specified owner hereunder is deemed a
"work made for hire" to the extent it is eligible by law for that status.
4.9.7 Provider hereby assigns all rights in covered innovations to Customer that it
does not and will not own by operation of law. [INNV-HRBASSN] †
(1) The innovator hereby assigns to the specified owner all right, title, and interest in and to any covered in-
novation that the owner does not own automatically by operation of law.
(2) IF: The assignment of subclause (1) is not effective for one or more innovations, for example because
the innovation is not yet in being; THEN: The innovator agrees to assign the same to the specified owner
upon request.
4.9.8 Provider will seasonably disclose covered innovations to Customer.[INNV-DSCLS]
The innovator will seasonably provide or disclose (as the case may be) all covered innovations to the
owner, in any case upon request and/or on such schedule as may be reasonably specified in writing by the
owner.
4.9.9 Provider will seasonably sign reasonable ownership documents and deliver
them to Customer.[INNV-DOCS]
Reasonable ownership documents refers to such documents as the specified party may reasonably request
from time to time to confirm, evidence, or effectuate its ownership, including (for example) domestic- and
foreign patent application documents, copyright-registration application documents, and assignments for
recordation.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 41 OF 97
4.9.10 Customer has power of attorney to sign reasonable ownership documents on
behalf of Provider.[INNV-PWRATTY] †
IF: The innovator does not timely sign and deliver one or more reasonable ownership documents required
by this Agreement; THEN: the specified party may sign those document(s) in the innovator's name; the in-
novator hereby irrevocably appoints that party as the innovator's attorney-in-fact solely for that purpose,
the appointment and power being coupled with an interest.
4.9.11 Provider will cooperate with Customer in any proceedings relating to innova-
tions. [INNV-COOP]
The innovator will cooperate with the owner and its designee(s), assignee(s), and successor(s), in a reason-
able manner, at the owner's request (and expense) from time to time, in any administrative, judicial, or ar-
bitration proceedings relating to or affecting one or more covered innovations.
4.9.12 Moral rights in deliverables are 'licensed' to Customer, its designees, etc.
[INNV-MRLRTS]
IF: As a matter of law, the innovator retains any so-called 'moral rights' or similar rights in an innovation
owned by the owner;
THEN: The innovator authorizes the owner and its designees, licensees, and assignees, without additional
compensation or payments to the innovator: (i) to make any desired changes to any part of that innovation;
(ii) to combine any such part with other materials; and (iii) to withhold the innovator's identity in connec-
tion with any business- or other actions relating to that innovation.
4.9.13 Provider retains the right to use, distribute, and further develop tools, compo-
nents, etc. [INNV-PRVRTRT] †
(1) Unless expressly agreed otherwise, Provider will retain the perpetual, irrevocable, worldwide, royalty-
free right to use in its business any tools, components, and general knowledge and experience, that were
developed or gained in the course of performing its obligations under this Agreement.
(2) Provider may sublicense the right referred to in subclause (1), and may assign it in connection with a sale
or other disposition of the assets of its relevant business, without obligation to Customer.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 42 OF 97
4.9.14 Employees' and contractors' agreements are to comply with this section.
[INNV-EMPLAGR]
(1) Provider will ensure that its employees and subcontractors (if any) are legally obligated, by contract or
otherwise, to comply with the requirements of this section so that the owner owns their relevant innova-
tions to the same extent as those of Provider.
(2) The owner is a third-party beneficiary of such obligations to the extent they concern the ownership of
covered innovations.
4.10 Insurance requirements
4.10.1 Insurance coverage: Provider (the 'insured party') will maintain the following
insurance coverage, with one or more carriers each having a minimum A.M. Best rating
of <A VIII>, <while any transaction pursuant to this Agreement remains pending, and
for at least two years thereafter>. [INSR-CVRQ]
TYPE [1] MINIMUM POLICY LIMIT [2] ADDITIONAL INSURED [3]
Commercial general liability $1 million Yes
Errors and omissions $1 million No
Business automobile $300,000 Yes
Worker compensation insurance As required by law Yes
Employer liability $500,000 No
NOTES:
[1] Except as otherwise agreed, all insurance coverage required by this Agreement is to be maintained (A)
on an occurrence basis; (B) on industry-standard policy forms; (C) at the insured party's expense.
[2] All policy limits stated in this Agreement are combined single limit per occurrence unless otherwise
noted.
[3] If so indicated, Provider will cause its carrier(s) to provide the other party with an additional-insured en-
dorsement on industry-standard forms for the indicated coverage: Each additional-insured endorsement
must name at least the following as additional insureds for the relevant coverage(s): (i) The other party and
(ii) the officers, directors, employees, shareholders, general- and limited partners, members, and managers
of each of the foregoing. Each additional-insured endorsement must state that the insurance carrier will en-
deavor to give the other party at least 30 days' prior written notice of any cancelation, non-renewal, or ma-
terial change in the relevant policy.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 43 OF 97
4.10.2 Certificates and endorsements: Upon request by Customer (the beneficiary),
the insured party will seasonably cause its carriers to furnish the beneficiary with certifi-
cates of the required insurance and/or endorsements. [INSR-CERT]
4.10.3 Primary and non-contributing coverage is required for additional-insured en-
dorsements. [INSR-CTFENDR] †
If this Agreement requires an additional-insured endorsement for a particular coverage, the endorsement
document must designate the insured party's coverage as primary and non-contributing.
4.10.4 Provider will cause additional-insured endorsements also to name: (i) Cus-
tomer's parent company, subsidiary companies, and companies under common control,
if any; and (ii) the officers, directors, employees, shareholders, general- and limited part-
ners, members, and managers of each of them. [INSR-ADDL] †
4.10.5 Subrogation is waived. [INSR-SBRWVD] †
The insured party, on behalf of itself and its carrier(s), waives all rights of subrogation of any kind against
(i) the beneficiary; (ii) all additional insureds, if any; and (iii) the the officers, directors, employees, share-
holders, general- and limited partners, members, and managers of each of the foregoing who are not addi-
tional insureds in their own right.
4.10.6 Provider's> subcontractors (if any) are to comply with the requirements of this
section. [INSR-SUBKCMPL]
(1) The insured party will contractually require each of its subcontractors, if any, to comply with the require-
ments of this section.
(2) For the avoidance of doubt, this clause does not in itself permit the insured party to use subcontractors
in carrying out its obligations under this Agreement.
4.10.7 Deductions and retentions are Provider's> responsibility, but those for addi-
tional-insured claims are Customer's responsibility.
Unless expressly agreed otherwise: [INSR-DEDRET]
(1) IF: The beneficiary makes a claim as an additional insured against the insured party's insurance; THEN:
All deductibles in respect of that claim are the sole responsibility of the beneficiary.
(1) All other deductibles and self-insured retentions are the sole responsibility of the insured party.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 44 OF 97
4.10.8 Customer will reimburse Provider for <all premiums> paid for insurance re-
quired by this Agreement. [INSR-PRMREIMB] †
4.10.9 Noncompliance with this section is a material breach. [INSR-MTLBR] †
The other party may, at its option, deem the insured party's noncompliance with this section to be a mate-
rial breach of this Agreement.
4.10.10 Noncompliance with this section <for any reason> does not extend Provider's>
deadlines. [INSR-DDLN] †
The insured party's failure to comply with the requirements of this section will not in itself extend its time
for performance of its other obligations under this Agreement.
4.11 Personnel – certain matters
4.11.1 <Each party> is responsible for its own personnel except as otherwise agreed.
[PERS-RSP]
(1) Except to the extent (if any) otherwise agreed, as between the parties, each specified party (the em-
ployer) will have sole responsibility, and sole authority, for all personnel-management matters, of any na-
ture, relating to its own personnel.
(2) This responsibility and authority extend, for example, to the following: (A) recruiting; (B) compensation;
(C) withholding required by law; (D) determining the means and manner in which the employer's personnel
perform their work; (E) supervision of the employer's personnel.
4.11.2 Provider will maintain suitable written agreements with its relevant personnel.
[PERS-WRAGR]
The specified party (or parties) will maintain written agreements with its relevant personnel (for example,
employment agreements with confidentiality- and invention-assignment provisions) sufficient for
performance of its obligations under this Agreement.
4.11.3 Provider will furnish copies of relevant personnel agreements — in confidence,
and redacted if desired — upon Customer's reasonable request. [PERS-PRVWRAGR] †
(1) If reasonably requested as stated, the specified party or parties (each, an employer) will seasonably fur-
nish the other party with copies of relevant agreements between itself and its personnel.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 45 OF 97
(2) The other party will preserve all such copies and their contents in confidence and not disclose them to
third parties, nor will it use such contents except to confirm the sufficiency of the agreements.
(3) At the employer's option, to protect sensitive information, it may redact any copies of agreements be-
tween itself and its personnel that it furnishes to the other party.
4.11.4 <Each party> will defend and indemnify <the other> from any third-party
claims that implicate the indemnifying party's performance of its personnel-manage-
ment obligations. [PERS-INDM] †
(1) The specified party or parties (each, an indemnifying party) will defend and indemnify the other party
and its protected persons against any and all claims arising from or relating to the indemnifying party's poli-
cies, practices, actions, and omissions concerning its internal personnel management. This obligation is re-
ferred to for convenience as the personnel management indemnity obligation.
(2) The personnel management indemnity obligation applies, for example, to all claims —including for ex-
ample claims by the indemnifying party's personnel and by government agencies — in respect of the follow-
ing:
(A) the indemnifying party's recruiting activities, including for example background checks and
other personnel screening;
(B) the indemnifying party's payment of wages and other compensation and its provision of em-
ployment benefits;
(C) the indemnifying party's withholding, reporting, and remitting of employment-related taxes;
(D) the indemnifying party's employment practices;
(E) workplace injuries suffered by the indemnifying party's personnel, including but not limited to
those resulting in death.
4.11.5 Indemnity obligation for workplace injury is limited. [PERS-INDMWKPLC]
In respect of workplace injury suffered by the indemnifying party's personnel, the personnel-management
indemnity obligation of this section applies only to the extent that the injury was not caused by the pro-
tected person's own negligence or other misconduct.
4.11.6 <Neither party will> solicit <the other party's> actively-involved employees dur-
ing and for <three months> after each transaction. [PERS-NOSLCT] †
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 46 OF 97
(1) The specified party or parties (each, a nonsoliciting party) agrees not to solicit, for employment or con-
tract work, any employee of another party (the employer) who is actively involved in a transaction under
this Agreement without the employer's consent.
(2) This obligation applies (A) while the transaction in question is in progress, and (B) during a transition pe-
riod of the specified time thereafter.
4.11.7 The EXCLUSIVE REMEDY for any breach of the employee non-solicitation obliga-
tion above is for the breaching party to pay the other party recruiting compensation as
set forth below. [PERS-NOSLCT-EXCLREM] †
4.11.8 Recruiting compensation of <three months of the employee's most-recent for-
mer salary> must be paid by <any party> that hires an employee of <another party> <if
the employee was actively involved in the transactions contemplated by this Agreement
on behalf of the other party>. [PERS-RCRTCMP] †
IF: A specified party (the new employer) hires an employee of another party (the former employer) in viola-
tion of a nonsolicitation obligation under this Agreement without the former employer's consent;
THEN: The former employer may invoice the new employer for (in which event the new employer will pay)
the specified recruiting compensation.
4.11.9 Recruiting compensation need not be paid if the former employer involuntarily
terminated the employee and the new employer did not solicit the employee before
such termination. [PERS-RCRTCMP-INVOL] †
4.12 Privacy : Gramm-Leach-Bliley Act provisions
4.12.1 Definitions for this section are those of the Act. [GLBA-DFN]
This section applies to "nonpublic personal information" of or about a "consumer" (as the quoted terms are
defined in the Gramm-Leach-Bliley Act, 15 USC § 6801 et seq., and its implementing regulations, referred to
collectively as "the Act" unless the context indicates otherwise), when the nonpublic personal information is
disclosed to or collected by a party (the "receiving party") by or on behalf of another party (the "disclosing
party").
4.12.2 The receiving party will maintain nonpublic personal information in confidence
as required by the Act. [GLBA-OBLG]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 47 OF 97
The receiving party will:
(1) maintain the confidentiality of nonpublic personal information.
(2) not use nonpublic personal information other than to carry out the purposes for which it was disclosed
to the receiving party, or as permitted by any applicable exception under the Act.
(3) not disclose, directly or through its affiliate, such nonpublic personal information to any other person
that is a nonaffiliated third party of both the disclosing party and the receiving party, unless such disclosure
would be lawful if made directly to such other person by the disclosing party.
(4) implement and maintain a security program designed to protect nonpublic personal information against
unauthorized access, use, or disclosure.
(5) promptly notify the disclosing party of:
(i) any actual or suspected unauthorized access, use, or disclosure of nonpublic personal informa-
tion provided by the disclosing party, and
(ii) any request for access to such information by a governmental- or nongovernmental third
party.
(6) cooperate with the disclosing party in a reasonable manner in case of any actual or anticipated litigation
or regulatory inquiry or action concerning the nonpublic personal information provided by the disclosing
party.
4.12.3 Reasonable GLBA inspections by the disclosing party, in confidence, are
permitted. [GLBA-INSPC]
(1) The disclosing party will have the right, during normal business hours upon reasonable advance notice,
to inspect the receiving party's policies and practices for preserving the security of nonpublic personal infor-
mation disclosed pursuant this Agreement (referred to collectively as the receiving party's "GLBA prac-
tices").
(2) The receiving party will cooperate with the disclosing party in a reasonable manner in any inspection of
the receiving party's GLBA practices.
(3) The disclosing party will maintain in strict confidence all non-public information about the receiving
party's GLBA practices and will contractually require any third-party inspector to do the same.
4.13 Privacy: HIPAA business-associate provisions
4.13.1 Definitions for this section are those of HIPAA and its Privacy Rule. [HIPPA-DFN]
This clause relates to "PHI", namely "protected health information" (as defined in the Health Insurance
Portability and Accountability Act of 1996, or "HIPAA") that is disclosed by a party (the "disclosing party")
to another party (the "receiving party"), or created or received on behalf of the disclosing party by the re-
ceiving party or its agents or subcontractors (if any).
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 48 OF 97
4.13.2 The receiving party will comply with HIPAA- and Privacy-Rule requirements.
[HIPPA-CMPL]
The receiving party will:
(1) not use or further disclose PHI other than as provided by this Agreement or as required by law;
(2) use appropriate safeguards to prevent use or disclosure of PHI other than as provided by this Agree-
ment;
(3) report to the disclosing party any use or disclosure of PHI not provided by this Agreement of which it be-
comes aware;
(4) ensure that its relevant agents, including for example subcontractors (if any), agree to the same restric-
tions and conditions that apply to us with respect to PHI;
(5) make PHI available for amendment, and incorporate amendments into the PHI, in accordance with
45 CFR § 164.526;
(6) make PHI available as required to provide an accounting of disclosures in accordance with 45 CFR
§ 164.528;
(7) make its internal practices, books, and records — to the extent that they relate to the use and disclosure
of PHI —available to the secretary of the Department of Health and Human Services for the purpose of de-
termining the disclosing party's compliance with the HIPAA privacy rule.
4.14 Publicity
4.14.1 <Neither party> will issue press releases, etc., about this Agreement or the
parties' relationship without <the other party's> approval. [PBLCTY-APPVRRQD] †
4.14.2 The parties will> issue a joint press release announcing this Agreement <if so
requested by either party>. [PBLCTY-JTPRRL] †
4.14.3 A draft press release prepared by <a party> will be deemed approved by the
other party if (i) the draft concerns the subject matter of this Agreement, and (ii) <the
other party> does not object to it <in writing> after having <five business days> in which
to review the draft. [PBLCTY-PRRLAPPRV] †
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 49 OF 97
4.15 Recordkeeping requirements
4.15.1 Basic requirement: Provider will maintain complete and accurate records, con-
forming at a minimum to <customary standards>, <for each transaction under this
Agreement>.[RCDKPG-RQMT]
4.15.2 Records are to comply with law. [RCDKPG-LGLCMP]
All records required to be maintained pursuant to this Agreement are to conform to the relevant require-
ments of applicable law (if any), in addition to any other requirements that may be stated herein.
4.15.3 Provider will retain required records <for at least one year after completion of
the relevant transaction>. [RCDKPG-RECRET] †
The specified party will retain all records that it must maintain under this Agreement for the specified pe-
riod or as required by law, whichever is longer.
4.15.4 <Reseller> will keep appropriate customer-information records and promptly
furnish Provider with copies of portions relevant to this Agreement upon Provider's re-
quest from time to time. [RCDKPG-CSTMREC] †
In Reseller's customer-information records, the portions relevant to this Agreement include, for each cus-
tomer, at least the following: the customer's name and address; the quantity and prices of Provider's prod-
ucts and/or services acquired (or offered but not acquired); and such other categories of information as
may be reasonably specified in writing by Provider from time to time.
4.15.5 Customer may audit Provider's> records required by this Agreement, in accor-
dance with the audit provisions of this Agreement. [RCDKPG-AUD] †
4.16 Relationship management
4.16.1 <Each party> will designate a senior representative upon request. [RLMGT-SRRP]
Upon request by either party, [each specified party] will, from time to time, designate to [the other party],
in writing (including for example by email), a senior-level individual who is authorized by the designating
party (1) to act as that party's primary representative and contact point for the other party under this
Agreement; and (2) to make decisions for the designating party hereunder.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 50 OF 97
4.16.2 Status-review conferences will be held, by phone or in person, <at either party's
reasonable request>. Conference details will be arranged by <the requesting party>,
which will seasonably circulate draft minutes if requested. [RLMGT-STSCNF]
(1) Each party will participate in status conferences as stated.
(2) The parties anticipate that conference agendas will typically include, as appropriate and without limita-
tion: (A) progress made; (B) problems encountered or anticipated; (C) plans for future action; and (D) as-
sumptions being made.
(3) Unless otherwise agreed, the specified party will take the lead in arranging the administrative mechanics
of the conference, including for example, as appropriate, coordinating the scheduling; providing a dial-in
number for telephone conferences; and circulating a proposed agenda, especially including previous items
for follow-up.
(4) The specified party may (and if another party so requests, it shall) seasonably draft and circulate confer-
ence minutes that include (A) a summary of any decisions made, and, (B) as a tracking aid, a list of any ac-
tion- or follow-up items assigned to specific individuals or parties.
(5) Any party may object to the contents of draft minutes by seasonably so advising all other parties in writ-
ing.
4.17 Site visits
4.17.1 Visiting parties will comply with reasonable, timely-communicated site rules
and network policies. [STVST-CMPL]
Personnel subject to the control of either party ("visiting party") who visit physical premises or access a
computer system or network (collectively, "site") of the other party ("visited party") are to comply with
such reasonable site rules and policies as the visited party may timely communicate to the visitors or to the
visiting party.
4.17.2 Customer's current <site rules and network policies are> attached as <Ex-
hibit X>. [STVST-RLSATT]
4.17.3 <Each party> will <use reasonable efforts to> avoid interfering with <the other
party's> activities at the site. [STVST-NOINTRF]
The specified party or parties will use the stated efforts avoid having its activities at the site unduly interfere
with the stated other activities there.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 51 OF 97
4.17.4 Visiting-party personnel may be denied access for good reason. [STVST-DNDACC]
If a visited party denies access to its site for one or more of the visiting party's personnel, it will promptly
advise the visiting party of that fact, and of its reasons for doing so.
4.17.5 Evidence of site visitors' employability will be furnished upon reasonable
request. [STVST-EMPLBLT] †
If reasonably requested by the visited party, a visiting party will provide the visited party with appropriate
evidence that its personnel who go on-site at visited party's physical premises are legally employable in that
jurisdiction.
4.17.6 Background checks are required for on-site personnel. [STVST-BKGDCK] †
A visiting party will have criminal background checks conducted, in accordance with the procedures set
forth in the "Background checks" section, on all of its employees and other individuals (other than
employees of the visited party or its affiliates) who, at the visiting party's direction, will have access to any
physical premises or computer network of the visited party.
4.18 Staffing
4.18.1 Provider will consult with Customer to a reasonable extent, at Customer's re-
quest, about significant staffing changes in its work pursuant to this Agreement. [STF-CNSLT] †
4.18.2 Provider will make reasonable efforts to maintain staffing stability in its work
pursuant to this Agreement. [STF-STBLT] †
4.18.3 Customer has approval rights over certain staffing changes. [STF-APPVLRT] †
(1) As used in this clause, "designated Provider staff member" refers to an employee of Provider or of an
affiliate of Provider who has been specifically designated to Customer by Provider as providing specified
services pursuant to this Agreement.
(2) Provider will see to it that no designated Provider staff member is removed from so providing the speci-
fied services unless at least one of the following is true: (A) Customer approves in writing, with approval not
to be unreasonably withheld or delayed; (B) the employee's employment with Provider or its affiliate is be-
ing terminated; (C) the employee's time is being billed to Customer, Provider or its affiliate is increasing the
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 52 OF 97
rate at which the employee's billing time is to be billed to Customer (subject to any applicable restrictions
on such increases imposed by this Agreement), and Customer elects not to pay the increased rate.
4.18.4 Provider's staff turnover time will not be billed to Customer. [STF-TNRBLL] †
In any case in which a Provider designated staff member is being replaced, Provider will not bill Cus-
tomer for time spent in turning over the staff member's duties to his or her replacement without Cus-
tomer's prior approval.
4.18.5 Provider will attempt to remedy any Customer dissatisfaction with Provider's
staff members. [STF-DSSTRMD] †
IF: Customer becomes dissatisfied with any employee of Provider engaged in work under this Agreement;
THEN:
(1) Customer may give written notice to Provider of such dissatisfaction, including the specific reasons for
such dissatisfaction if any; in which case —
(2) Provider will promptly make such efforts (compliant with law) as it reasonably deems appropriate to
remedy such dissatisfaction.
4.18.6 Designated Provider staff members will not do work for designated Customer
competitors while<, and for three months after,> providing services for Customer.
[STF-NOWKCMPT] †
(1) The purpose of this clause is to protect Customer's confidential information. It applies if the parties ex-
pressly agree in writing that one or more companies are designated as Customer's competitors (designated
Customer competitors) for purposes of restricting the assignments of one or more specific employees of
Provider and/or its affiliates (designated Provider staff members).
(2) During the time that any designated Provider staff member is assigned to work directly on providing ser-
vices for Customer pursuant to this Agreement, and for the specified period thereafter (if any), Provider will
not assign that staff member to work directly on any project intended specifically and exclusively for a des-
ignated Customer competitor without Customer's prior written consent.
(3) For the avoidance of doubt, any designated Provider staff member may work on projects that are not in-
tended specifically and exclusively for a designated Customer competitor, including for example technology
that is used or to be used on behalf of multiple clients.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 53 OF 97
4.19 Subcontractors
4.19.1 Provider will obtain Customer's approval for <any use of subcontractors, each
specific subcontractor, and all subcontracting agreements>. [SUBK-CSTMAPPVL] †
4.19.2 Customer's approvals concerning subcontractors are for its own benefit only.
[SUBK-APPVLOWN]
(1) Any review and/or approval by Customer of a subcontractor or a subcontracting agreement will be
strictly for its own benefit and will not excuse Provider from its obligation to select its subcontractors, enter
into appropriate subcontracting agreements, and oversee the subcontractors' work.
(2) For the avoidance of doubt, this clause does not in itself authorize or restrict the use of subcontractors
by Provider.
4.19.3 Unreasonable delays in Customer's review or approval may be taken into ac-
count in assessing Provider's performance under this Agreement. [SUBK-APPVLDLY]
Any unreasonable delay in consent or approval by Customer, in matters relating to subcontractors, may be
appropriately taken into account in determining whether Provider is in breach of its obligations under this
Agreement.
4.19.4 Provider retains responsibility in respect of subcontractor performance. [STF-PRVRSPSUBK] †
For the avoidance of doubt, if Provider uses subcontractors, it will nevertheless continue to be Customer's
primary contact; it will be responsible to Customer for performance of all of its obligations under this
Agreement.
4.19.5 Customer will have no direct contractual relationship with Provider's subcon-
tractors. [STF-CSTMNORL] †
For the avoidance of doubt, nothing in this Agreement is to be deemed as creating a direct contractual rela-
tionship between Customer and any subcontractor of Provider.
4.19.6 Customer will not attempt to direct subcontractor work pursuant to this Agree-
ment. [SUBK-CSTMDIRWK] †
For the avoidance of doubt, if Provider uses subcontractors, Customer will refrain from attempting to direct
the performance of their work.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 54 OF 97
4.19.7 Proprietary-rights requirements must be met in subcontractor agreements. [SUBK-IPRTSRSUBKAGMT]
Provider will enter into written agreements with its subcontractors (if any) that are at least as protective of
the proprietary rights of Customer as those of this Agreement.
4.19.8 Government-contract clause requirements must be met in all subcontractor
agreements. [SUBK-GVCLSRQMT] †
Provider will enter into written agreements with its subcontractors (if any) that include government-con-
tracting clauses corresponding to those contained in this Agreement.
4.19.9 Provider must furnish governmentally-required subcontractor information. [SUBK-PRVSUBKINFO] †
At Customer's written request from time to time, Provider will seasonably provide Customer with informa-
tion about its subcontractors to the extent reasonably necessary for Customer to make any reports re-
quired by law (for example, equal-opportunity statutes or regulations) or by Customer's contract with a gov-
ernmental entity.
4.19.10 All non-employees are subcontractors. [SUBK-WHOIS] †
For the avoidance of doubt, any individual providing services on behalf of Provider pursuant to this Agree-
ment who is not an employee of Provider is deemed a subcontractor for purposes of this section.
4.20 Trademarks
4.20.1 <Neither party will> use any trademark of <the other party> except as other-
wise agreed. [TRMK-NOUSE]
4.20.2 <Each party> will comply with any written trademark-usage policies or guide-
lines that may be timely provided by <the other party> for its trademark(s), including for
example instructions for display of trademark-rights or -registration notices. [TRMK-PLCYCMPL]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 55 OF 97
4.20.3 <Each party's> trademarks are its exclusive property or that of an associated
company. [TRMK-PRPTY]
For the avoidance of doubt, nothing in this Agreement entitles the other party, expressly or by implication,
to any title or ownership interest in the specified trademark owner's trademarks.
4.20.4 <Trademark-User> will ensure that each licensed product and licensed service
meets or exceeds quality standards set by <Trademark-Owner> in its discretion. [TRMK-QLSTD]
4.20.5 <Trademark-User> will supply representative samples of <licensed products
and of materials containing any licensed trademark>, to <Trademark-Owner>, upon its
reasonable request, <at no charge,> for inspection and testing purposes. [TRMK-SMPL]
Such materials could include, for example, advertisements, product labels, packaging, catalogs, letterhead,
and the like.
4.20.6 <Trademark-Owner> may test and/or dispose of, in its discretion, samples pro-
vided by <Trademark-User> pursuant to this section. [TRMK-SMPLTST]
4.20.7 <Trademark-User> will permit reasonable inspections, by <Trademark-
Owner>'s authorized representatives, of <Trademark-User>'s relevant facilities, at
<Trademark-Owner>'s expense. [TRMK-INSPCT] †
Relevant facilities include, for example, those involved in the manufacture, inspection, storage, packing, and
shipment of licensed products.
4.20.8 Reseller may identify itself, for example on its Web site and in its promotional
literature, as an authorized Provider reseller. [TRMK-RSLRID]
4.20.9 Reseller may display a Provider-approved logo on its Web site together with
links to appropriate pages of Provider’s Web site. [TRMK-LOGOWEB]
4.20.10 Reseller will remove from its Web site, within <2 business days> of a written re-
quest by Provider, any Provider logo and/or any link to a Provider Web site. [TRMK-RMMWEB]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 56 OF 97
4.20.11 Provider may identify Reseller, for example on Provider’s Web site and in its
promotional literature, as being a Provider reseller. [TRMK-PRVID]
4.20.12 Reseller will not use any Provider trademark, trade name, or corporate name
except in connection with the sale or resale of <Products and Services>. [TRMK-NOUSEPRDSRV]
4.20.13 Reseller will not file any trademark-registration application or registered-user
application for any Provider trademark without Provider's written consent. [TRMK-NOAPPL]
4.20.14 Reseller will assist Provider, at its request, in filing one or more trademark-reg-
istration applications for any Provider trademark used by Reseller. Reseller will do so
(i) at Provider's sole direction, and (ii) at Provider's> expense>. [TRMK-APPLFLG]
4.20.15 Reseller will file one or more registered-user applications, at <its own> ex-
pense, for any Provider trademark used by Reseller, but only with Provider's prior writ-
ten consent. [TRMK-REGUSRAPP]
4.20.16 Provider will defend Reseller against any trademark-infringement claim by a
third party, where the claim is that Reseller's use of a Provider trademark infringes the
third party's trademark, and will indemnify Reseller against any resulting damage award.
The obligations of this clause are referred to as the trademark indemnity. [TRMK-PRVINDM]
4.20.17 Provider's maximum liability under the trademark indemnity is <the limit(s) of
Provider's relevant insurance coverage(s)>. [TRMK-INDMLBMX] †
4.20.18 Reseller will not use any trademark confusingly similar to any Provider trade-
mark, nor assist or knowingly permit such use by others. [TRMK-NOPRVMK] †
For purposes of this clause, "use" of a trademark includes, among other things, registering or licensing a do-
main name.
4.20.19 Reseller will not challenge the validity of any Provider trademark or registration
or Provider's ownership of it, nor knowingly assist another to do so. [TRMK-NOCHLG] †
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 57 OF 97
4.20.20 Reseller's use of Provider's trademarks, if any, will inure exclusively to
Provider's benefit. [TRMK-INRMT]
4.20.21 No Provider trademark other than those listed in <Schedule X> are authorized
for <Reseller>'s use under this Agreement. [TRMK-NOLIC]
5. Warranties & remedies
5.1 Defects
5.1.1 Defect warranty: All <goods or services> delivered by Provider in fulfillment of
its obligations under this Agreement will be free of any <significant failure> to conform
to the requirements of <the agreed statement of work>. [WARDEF-CLS] †
For purposes of this Agreement, a significant failure to conform to requirements is one that a skilled artisan,
acting as a mentor to an experienced apprentice seeking to master the art in question, would expect the ap-
prentice to correct before showing the work to the artisan's peers.
5.1.2 The EXCLUSIVE REMEDIES for any breach of the defect warranty are as set forth
in the defect-remedy clauses below. [WARDEF-EXCLRMD] †
5.1.3 Defect remedy: Corrective action: Provider will <correct> any noncompliance
with the defect warranty that Customer reports to Provider either (i) before Customer's
acceptance or (ii) within <the 90 days> after <acceptance>. [WARDEF-CRCTN]
(1) Provider's corrective action will be at Provider's own expense unless otherwise agreed. (2) Provider's
obligation to take corrective action is conditioned on Customer's seasonably providing reasonable informa-
tion about the defect. (3) Provider's corrective action, at Provider's option, may include replacing putatively-
defective goods or re-performing putatively-defective services.
5.1.4 Defect remedy: Refund: IF: Provider does not complete required action to cor-
rect a <material> noncompliance with the defect warranty within <30 days> after Cus-
tomer's noncompliance report; THEN: At Customer's request, Provider will refund <the
purchase price of the defective services or deliverables>. [WARDEF-RFND] †
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 58 OF 97
5.1.5 Defect remedy: Termination: IF: Provider does not complete required action
to correct a <material> noncompliance with the defect warranty within <30 days> after
Customer's noncompliance report; THEN: Customer may terminate this Agreement by
giving Provider notice of the same. [WARDEF-TRMN] †
5.2 Software performance
5.2.1 Software media: For <three months> after delivery, Provider will replace, at no
charge, any defective media on which it supplies Customer with copies of the licensed
software and/or its accompanying documentation. This is Customer's exclusive remedy
for defective media. [WARSFT-MDA]
5.2.2 Software functionality warranty & remedies: Referring to the warranty table
below: IF: Customer reports to Provider, during the required reporting period, that the
<Software> as delivered by Provider appears <materially> not to comply with the stated
warranty; AND: Provider is able to duplicate Customer's problem and confirm noncom-
pliance; THEN: (1) Provider will have up until the stated deadline in which to attempt to
resolve the noncompliance in accordance with the "Technical-issue support" section of
this Agreement; (2) if for any reason Provider does not resolve the noncompliance, then
(i) at Customer's written request Provider will seasonably issue a refund, in the stated
amount and on the stated terms, and (ii) if Customer has requested a refund of a license
fee, then the corresponding license will automatically terminate as of the date of the re-
fund request. [WARSFT-FNCT]
SOFTWARE FUNCTIONALITY WARRANTY TABLE
WARRANTY
REQUIRED REPORTING PERIOD
RESOLUTION DEADLINE [1] REFUND
The <Software> functions <in all material respects> in accordance with its specifications.
90 days after initial delivery [2]
30 days 100% of paid license fee <and mainte-nance fee>
The <Software> does not contain harmful code. 90 days after delivery [3]
30 days [4], [5]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 59 OF 97
SOFTWARE FUNCTIONALITY WARRANTY TABLE
WARRANTY
REQUIRED REPORTING PERIOD
RESOLUTION DEADLINE [1] REFUND
The <Software> does not contain any undisclosed "back door," "time bomb," or other mechanism de-signed to permit Provider to interfere with Customer's use of the <Software> pursuant to its license.
Unlimited 30 days [4]
The <Software> correctly processes date data (if any) for dates before and after January 1, 2000, including but not limited to leap-year recognition.
90 days after delivery [3]
30 days [4]
NOTES:
[1] Resolution deadlines are calculated from the date of Customer's initial report of a possible warranty
noncompliance.
[2] This warranty applies to all versions of the software delivered during the warranty period, including for
example not only the initial delivered version but also updates and maintenance releases (if any). The "ini-
tial delivery date" — and thus the beginning of the warranty period — is the date of delivery of (i) the first
version of the <Software> licensed under a paid license or, if later, (ii) any license key or code needed to ex-
ercise Customer's licensed rights for that version. THAT IS, the warranty period for this warranty (x) does
not begin to run during a free trial period for the software; and (y) does not restart with delivery of an up-
date or maintenance release for the software.
[3] This warranty applies to each version of the software delivered by Provider.
[4] The refund for these warranties will be a percentage, depending on which version of the Software was
the subject of the warranty breach, as follows: First version licensed under a paid license: 100% of the paid
license fee (and maintenance fee if applicable). Subsequent versions: 100% of the paid maintenance fee for
then-current maintenance period and 0% of the license fee. Versions not licensed under a paid license (e.g.,
free-trial versions): None. Any version for which the warranty breach is not reported until after the end of
the warranty period: None.
[5] For the no-harmful-code warranty, in addition to the other remedies stated in this clause: (A) Provider
will reimburse reasonable expenses Customer actually incurs in restoring software and data damaged by
any violation of the warranty; (B) for the avoidance of doubt, restoration expenses are not reimbursable to
the extent they could have been avoided or mitigated by prudent precautions such as, for example, regular
backup procedures.
5.2.3 Clause 5.2.2 sets forth Customer's EXCLUSIVE REMEDIES for any noncompli-
ance with any of the software-functionality warranties in that clause. [WARSFT-FNCT-EXCLRMD]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 60 OF 97
5.3 Infringement
5.3.1 Infringement warranty: Provider> warrants to Customer that <any product or
service delivered by or on behalf of Provider in fulfillment of its obligations under this
Agreement> will be delivered free of the rightful claim of any third party by way of in-
fringement or the like. This warranty is referred to as the infringement warranty. [WARINFR-WRNT] †
5.3.2 Infringement warranty — patents and design patents are not covered unless
otherwise agreed. [WARINFR-NOPAT] †
Unless otherwise agreed, Provider DOES NOT WARRANT that any warranted product or its manufacture,
use, or sale does not infringe a patent or design patent.
5.3.3 Infringement warranty — compliance with certain specifications is excluded
unless otherwise agreed. [WARINFR-SPECS]
The infringement warranty does not apply to the extent that the claimed infringement arises from compli-
ance with specifications (1) provided by the beneficiary or (2) provided on behalf of the beneficiary, by any
person other than the warranting party, and approved by the beneficiary.
5.3.4 Infringement warranty — certain combination uses of the warranted
product(s) are excluded. [WARINFR-CMBNT]
The infringement warranty does not apply to claims of infringement arising out of use of a warranted prod-
uct in combination with other goods if no claim of infringement is made in respect of the warranted product
apart from the combination.
5.3.5 Infringement warranty — directed combination uses of the warranted
product(s) are NOT excluded. [WARINFR-DRCMB]
The infringement warranty of this section does apply, by its terms, to third-party infringement claims if the
warranting party directed the beneficiary to use the warranted product in the accused combination, even if
the warranted product is not accused of infringement.
5.3.6 The infringement-remedy clauses below set out the EXCLUSIVE REMEDIES for
any breach of the infringement warranty. [WARINFR-EXCLRMD] †
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 61 OF 97
5.3.7 Infringement remedy: Provider will indemnify and defend Customer against
third-party claims that, if successful, would constitute a breach of Provider's infringe-
ment warranty. [WARINFR-INDMN]
IF: A third party makes a claim that, if successful, would establish a breach of the infringement warranty of
this Agreement; THEN: Provider will: (1) defend Customer and its protected persons against the claim, and
(2) indemnify each protected person against any monetary award entered on the claim (including, for exam-
ple, an award of attorneys' fees) in a final judgment or award from which no further appeal is taken or pos-
sible.
5.3.8 Provider's AGGREGATE LIABILITY for indemnity and defense against infringe-
ment claims is limited to <X times the amount(s) paid for the accused product>.[WARINFR-INDMLBMX] †
5.3.9 Infringement remedy: In case of a 'stop-use event,' as defined below, Provider
will (i) modify the infringing product, (ii) replace it, and/or (iii) refund Customer's paid
purchase price prorated over <three years after acceptance>. [WARINFR-STPUS]
(1) This clause applies if any of the following stop-use events occurs: (A) a protected person stops using a
warranted product to comply with an injunction, duly issued by a court or other tribunal of competent juris-
diction, on grounds of infringement covered by the infringement warranty; OR (B) Provider reasonably de-
termines that a protected person should stop using a warranted product because of a claim of such infringe-
ment, and so advises Customer in writing.
(2) IF: A stop-use event occurs for a warranted product; THEN: The warranting party will take one or more
of the following actions of its choice, at its own expense:
(A) The warranting party will cause the warranted product to be modified or replaced with a non-in-
fringing substitute, so that in material respects the modified- or replacement product performs the
same functions as the replaced product; or
(B) The warranting party will procure for the beneficiary a license or other right to continue using the
warranted product; or
(C) IF: the warranting party determines that it would not be practicable for it to take the first two ac-
tions; THEN: The warranting party will refund a prorated portion of the amount that the beneficiary
paid for the warranted product, prorated as specified. HYPOTHETICAL EXAMPLE: Suppose that, after
one-third of the specified pro-ration time has elapsed, (i) the warranting party advises the beneficiary
to stop using a warranted product because of an infringement claim, and (ii) the warranting party also
decides to issue a refund to the beneficiary in lieu of modifying or replacing the warranted product. In
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 62 OF 97
that case, the amount of the refund would be computed by reducing the full amount paid for the war-
ranted product by one-third.
5.3.10 Infringement remedies: Provider will endeavor to consult with Customer con-
cerning stop-use events. [WARINFR-CNSLT] †
The warranting party will endeavor to consult with the beneficiary to a reasonable extent in determining
which actions to take in the stop-use event clause.
5.3.11 Warranty of non-interference with third-party contract: Provider warrants to
Customer, for <one year> following the effective date of this Agreement, that Cus-
tomer's entry into this Agreement and exercise of its license rights hereunder will not
constitute an unlawful interference with any contract between Provider and a third
party. [WARINFR-NOINTRF]
5.4 Other warranties
5.4.1 Provider will pass any third-party warranties through to Customerunless other-
wise agreed. [WAROTHR-PSSTHR]
IF: In performing its obligations under this Agreement, Provider acquires, from a third party, (i) goods of any
kind for delivery to Customer, or (ii) services rendered for Customer or used in creating items for delivery
to Customer;
THEN: Unless otherwise agreed, Provider will seasonably execute and deliver to Customer appropriate doc-
uments assigning to Customer any warranties made by the third party.
5.4.2 <Reseller> <represents and> warrants that the statements in <its reseller appli-
cation> are complete, accurate, and not misleading. [WAROTHR-STMTS]
5.4.3 <Each party> warrants its authority to enter into and perform this Agreement. [WAROTHR-AUTH]
Each specified party warrants to each other party that, except as may be expressly stated otherwise in this
Agreement, (i) the specified party has full power and authority to execute, deliver and perform its obliga-
tions under this Agreement, (ii) without breaching any other obligation to which the specified party is
bound, (iii) where such a breach would have a material adverse effect on the other party's interests.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 63 OF 97
5.5 Warranty disclaimers and limitations
5.5.1 <Each party> disclaims all warranties, representations, conditions, terms, etc.,
that are not expressly stated in or incorporated into this Agreement. [WRDSCL-ALL]
(1) EACH PARTY DISCLAIMS, for itself and its suppliers, all representations, warranties, duties, conditions,
and terms not expressly stated in this Agreement (or expressly stated in a document expressly incorporated
by reference herein).
(2) This disclaimer includes, for example, any implied warranties, representations, conditions, and implied
terms (BUT NOT express warranties stated in this Agreement) of merchantability; fitness for a particular pur-
pose (whether or not the disclaiming party or any of its suppliers know, have reason to know, have been ad-
vised, or are otherwise in fact aware of any such purpose); quiet enjoyment; title; noninfringement; ab-
sence of viruses, results, workmanlike effort, or implied term of quality, whether any of the foregoing is al-
leged to arise by law, by reason of custom or usage in the trade, by course of dealing, or in any other man-
ner.
(3) For the avoidance of doubt, NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, OR OTHER PERSON (other
than an authorized officer of Provider) IS AUTHORIZED TO MAKE ANY WARRANTY, REPRESENTATION OR
PROMISE WHICH IS DIFFERENT THAN, OR IN ADDITION TO, THOSE OF THIS AGREEMENT.
5.5.2 Provider does not warrant that the Software will be error free; will meet Cus-
tomer's needs; or will operate without interruption. [WRDSCL-SFTERR]
5.5.3 Provider does not warrant that the Software will perform in accordance with
any particular standard in cases of: hardware malfunction; misuse of the Software; mod-
ification of the Software by any party other than Provider; use of the Software with
other software not described in the documentation; or bugs in other software with
which the Software interacts. [WRDSCL-SFTSTDS]
5.5.4 Customer acknowledges that the Software is not designed or intended for use
in hazardous environments requiring fail-safe performance, including but not limited to
any application in which the failure of the Software could lead directly to death, per-
sonal injury, or severe physical or property damage, unless expressly agreed otherwise. [WRDSCL-SFTHZRD]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 64 OF 97
5.5.5 No sales representative, reseller, dealer or other person, other than an officer
of Provider, is authorized to add to, modify, or extend Provider's warranties. [WRDSCL-NOSLSRP] †
5.5.6 No one other than Customer is entitled to make a claim against Provider under
this Agreement for breach of any warranty, duty, condition, or representation with re-
spect to the <Software>. [WRDSCL-NOTHDPTY] †
5.6 Indemnity re third-party warranty claims
5.6.1 <Each party> will defend and indemnify <the other party> against any third-
party claims arising out of a breach of <the indemnifying party's> warranties in this
Agreement; this is referred to as the warranty-indemnity obligation. [WRINDM-THDPTCLM] †
The specified indemnifying party will defend and indemnify each other party and its protected persons
against any third-party claims that arise directly out of breach of a warranty made in this Agreement by the
indemnifying party. This obligation is referred to for convenience as the warranty-indemnity obligation.
5.6.2 The warranting party's AGGREGATE LIABILITY under the warranty-indemnity
obligation above is capped at <the aggregate of the fees and/or prices to be paid to the
warranting party in the relevant transaction>. [WRINDM-TDPTCLM-AGGRLB] †
Notwithstanding any exception to the remedy-limitation provisions of this Agreement, or any other provi-
sion of this Agreement to the contrary, the warranting party's AGGREGATE LIABILITY under the warranty-in-
demnity obligation of this Agreement, for a given transaction under this Agreement, SHALL NOT EXCEED the
stated amount.
5.7 Limitations of liability
5.7.1 Consequential damages, etc., arising out of breach: <Neither party> is liable for
them. [LMLB-CNSQTL †
Except as provided by law, or otherwise agreed in writing, NEITHER THE SPECIFIED PARTY (or parties) NOR
ITS PROTECTED PERSONS WILL BE LIABLE TO ANY OTHER PARTY OR ANY PERSON CLAIMING THROUGH
SUCH OTHER PARTY FOR, and each other party agrees not to seek from the specified party (or parties), con-
sequential, indirect, special, punitive, exemplary, or similar damages arising out of breach of this Agree-
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 65 OF 97
ment, whether in contract, tort, or otherwise, and even if the other party has been advised of the possibility
of such damages.
5.7.2 Damages cap: <Neither party> is liable for more than <two times the aggregate
amounts paid and payable in the transaction in question> for damages arising out of
breach. [LMLB-DMGSCP] †
Except as provided by law, or otherwise agreed in writing, the aggregate liability, to the other specified
party or parties and any and all individuals and organizations claiming through the same, of the specified
party (or parties) and its protected persons, arising out of breach of this Agreement SHALL NOT EXCEED —
and in respect thereof the other party agrees not to seek damages from them greater than — the specified
amount.
5.7.3 Personal injury resulting from breach is not subject to remedy limitations. [LMLB-PRSINJ]
The remedy limitations of this Agreement do not apply to injury to person proximately resulting from
breach of this Agreement.
5.7.4 Property damage resulting from breach is not subject to remedy limitations. [LMLB-PRPDMG]
To the extent required by law for the remedy limitations of this Agreement to be enforceable, such limita-
tions do not apply to damage to tangible property proximately resulting from breach of this Agreement.
5.7.5 Avoidable damage to information is subject to remedy limitations. [LMLB-INFO] †
The remedy limitations of this Agreement do apply to property damage to the extent that the damage takes
the form of loss of information, where the tangible media in which the information was stored are not oth-
erwise damaged.
5.7.6 Indemnity obligations are not subject to the damages cap unless otherwise
agreed. [LMLB-INDMN] †
The damages-cap provisions of this section do not apply to its indemnity- and claim-defense obligations ex-
cept to the extent that the Agreement expressly states otherwise.
5.7.7 Damages for infringement by a party of another party's intellectual-property
rights are not subject to remedy limitations. [LMLB-INFRG] †
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 66 OF 97
The remedy limitations of this Agreement do not apply to infringement, by a party to this Agreement, of
one or more intellectual-property rights of another party to this Agreement; the parties intend that any
damages for any such infringement be determined in accordance with applicable law. For the avoidance of
doubt, for purposes of this clause the term "intellectual-property rights" includes, for example, rights in
confidential information.
5.7.8 Even if one or more limited remedies has failed of its essential purpose, the
limitations of liability in this section shall apply nonetheless; the parties have specifically
agreed to this allocation of economic risk. [LMLB-FAIL] †
5.7.9 Preservation clause: IF: One or more limitations of liability benefiting a party
under this Agreement is held void or unenforceable under applicable law; THEN: That
party's relevant liability is nonetheless to be limited to the greatest extent consistent
with that law and this Agreement. [LMLB-SVGS] †
5.7.10 Other limitations of liability in this Agreement, if any, are not negated or lim-
ited by this section. [LMLB-NONEG] †
The limitations of liability in this section are without prejudice to any other limitations of liability that may
be stated in other clauses of this Agreement.
5.7.11 Some jurisdictions do not permit limitation or exclusion of remedies under
some circumstances, so some or all of the foregoing limitations may not apply to Cus-
tomer. [LMLB-NOAPPL]
5.7.12 Himalaya clause applies in favor of <each party's> servants, agents, and sub-
contractors. [LMLB-HMLY] †
(1) Each party expressly agrees that no servant, agent, or direct- or indirect subcontractor of a specified
party (each, a "protected person" for purposes of this clause), whose services are utilized in the perfor-
mance of the specified party's obligations or the exercise of its rights under this Agreement, shall be liable
to the agreeing party nor to any individual or organization claiming under or through the agreeing party, for
any loss, damage or delay arising or resulting (directly or indirectly) from such services.
(2) Without limiting the foregoing, every provision of this Agreement benefiting the specified party shall
benefit each protected person as if that provision were expressly for the protected person's benefit; to that
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 67 OF 97
extent, in entering into this Agreement the specified party is deemed acting as agent or trustee on behalf of
and for the benefit of each protected person.
6. Financial provisions
6.1 Software license fees
6.1.1 License fees will be stated in order forms: Each time Customer purchases one
or more licenses for the licensed software in accordance with this Agreement, Provider
will invoice Customer for a license fee as stated in the agreed written order form. [SFTFEE-ORD]
6.1.2 License fee: When the parties have signed this Agreement, Provider will invoice
Customer for a license fee for the licensed software in the amount of <$X>. [SFTFEE-STD]
6.1.3 Customer is not obligated to make any other payment to Provider for the li-
cense per se. (Other agreed fees, if any, are in addition to the license fee.) [SFTFEE-ONLY]
6.2 Pricing to Reseller
6.2.1 Discount: Reseller is entitled to purchase <Products and Services> from Provider
at a discount from Provider's then-standard list pricing, as follows: Products: <XX%>.
Services: <XX%>. [PRCRSLR-DSCNT]
6.2.2 Discount for special Reseller negotiations: IF: Reseller seasonably advises
Provider that it desires to negotiate a sale to an end customer at a discount from
Provider's list price greater than Reseller's discount (meaning Reseller would have to
take a loss); THEN: Provider may, in its sole discretion, give Reseller up to a <XX%> dis-
count on Reseller's final negotiated price to the end customer. [PRCRSLR-DSCNT-SPCL] †
6.2.3 No other discounts or promotions will be applied to the pricing set forth in this
Agreement unless the parties expressly agree otherwise. [PRCRSLR-NOOTHR]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 68 OF 97
6.2.4 Provider <may> offer <Products and/or Services> to others at pricing or on
agreement terms that may be more favorable than that offered to Reseller. [PRCRSLR-PRVOFFR]
Provider is under no obligation to offer the same or similar pricing or terms to Reseller or its customers.
6.2.5 Provider may change its list pricing from time to time, in its sole discretion, by
giving <30 days> prior notice to <Reseller>. [PRCRSLR-LSTCHG]
For the avoidance of doubt, pricing changes will not apply to fully-completed transactions, but will apply to
pending transactions except as otherwise agreed.
6.2.6 Reseller may defer, for up to <three months>, the effectiveness of list-price
changes for designated, actively-pending transactions. [PRCRSLR-LSTCHGDFR] †
(1) To effect a price-change deferral, Reseller must designate the transaction(s) in question after receiving
notice of an upcoming change in list pricing, but before the effective date of the change.
(2) For a designated transaction to be eligible for a price-change deferral, Reseller must be actively engaged
in negotiating in the transaction. Reseller will make reasonable efforts to comply with any requests by
Provider for evidence relevant to a designated transaction's eligibility.
(3) For each eligible designated transaction, the list pricing in effect before the price change will continue in
effect, to the extent that the transaction is consummated or partially consummated within the specified
time after the effective date of the change. Otherwise, the new list pricing will apply.
6.2.7 Provider's judgment is final as to whether a particular transaction is actively
pending, for purposes of determining eligibility for deferral of an increase in list-pricing. [PRCRSLR-LSTPRDFR-PRVDTM] †
6.2.8 <Each party> retains authority to set its own pricing to its customers. [PRCRSLR-NORPM]
For the avoidance of doubt:
(1) As between the parties, each specified party has exclusive authority to set the prices that it charges to its
own customers.
(2) Such authority, however, is subject to any pricing commitments that may be set forth herein for transac-
tions contemplated by this Agreement.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 69 OF 97
6.3 Pricing adjustments †
6.3.1 Only non-targeted general pricing increases will apply to Customer for <prod-
ucts or services> being purchased now, for <the first three years after the effective date
of this Agreement>. [PRCADJ-NOTGTD] †
During the stated period after the effective date of this Agreement, Provider will not increase any of the
prices it charges to Customer, for products and/or services being purchased by Customer in conjunction
with the parties' signing of this Agreement, except as part of a pricing change applicable to Provider's cus-
tomers generally.
6.3.2 Consumer Price Index and CPI refer to the U.S. CPI-U.
As used in this section, Consumer Price Index and CPI refer to the Consumer Price Index, All Items for All Ur-
ban Consumers (CPI-U) published by the U.S. Bureau of Labor Statistics. [PRCADJ-CPIDFN]
6.3.3 Automatic up-or-down <CPI> pricing adjustments <will> occur at the end of
each <12-month period> to match the change in <CPI> since <the effective date of this
Agreement>. The first such adjustment <will> occur <in the month X months after the
effective date of this Agreement>. [PRCADJ-CPIADJ] †
6.3.4 No automatic up-or-down pricing adjustment will exceed <X%> of the pricing in
effect <during the just-completed 12-month period.> [PRCADJ-CPFLT] †
6.3.5 No automatic up-or-down pricing adjustment will be made if the change in
<CPI> in the previous <12-month period> was not at least <Y%.> [PRCADJ-CPCPI] †
6.3.6 Provider, in its discretion, may increase its pricing under this Agreement only
<annually, in the anniversary month of the effective date of this Agreement>. [PRCADJ-ANNL] †
6.3.7 Discretionary pricing increases by Provider may not exceed <X%> or the change
in <CPI> <during the previous 12-month period>, whichever is <less>. [PRCADJ-DSCRCP] †
6.3.8 <Provider may not make a discretionary pricing increase before <X years> after
<the effective date of this Agreement.> [PRCADJ-DSCRFRST] †
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 70 OF 97
6.3.9 All pricing increases require <30 days> advance notice. [PRCADJ-NOT] †
6.3.10 Pricing changes apply to new- or renewed transactions only. [PRCADJ-NEWXCT] †
For the avoidance of doubt, revised pricing will apply on a going-forward basis only, and will not apply to al-
ready-agreed-to transactions, unless otherwise agreed.
6.4 Compensation for services
6.4.1 Provider's sole compensation for <services> will be <its regular billing rate(s) for
time actually worked>, unless otherwise agreed. [CMPSRV-SL]
6.4.2 Provider <will> bill for travel time <at 100% of its regular rates> unless other-
wise agreed. [CMPSRV-TRVLTM]
6.4.3 Customer will reimburse Provider's> reasonable, actual, out-of-pocket expenses
of performance <incurred with Customer's prior authorization> unless otherwise
agreed. [CMPSRV-REIMBEXP] †
6.4.4 Individual expenses exceeding <$X> must be approved in advance by Cus-
tomer to be reimbursable. [CMPSRV-EXPCP] †
6.4.5 Expenses may not be marked up, in any submission for reimbursement, unless
otherwise agreed. [CMPSRV-NOMKUP]
Except as may be otherwise agreed, a party requesting reimbursement of expenses under this Agreement
will submit such expenses on a straight pass-through basis, that is, without marking them up. (NOTE: This
clause does not in itself obligate any party to reimburse another party's expenses.)
6.4.6 Expense-reimbursement requests will conform to the payor's reasonable, sea-
sonably-provided written policies. [CMPSRV-EXPPLC]
All requests (if any) for reimbursement of expenses under this Agreement are to comply with such reason-
able written reimbursement policies as the payor may seasonably provide to the requesting party. (This
clause does not in itself obligate any party to reimburse another party's expenses.)
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 71 OF 97
6.4.7 Customer's current expense-reimbursement policy is attached as <Appen-
dix X>. [CMPSRV-EXPPLCATT] †
6.4.8 Provider personnel are not eligible for Customer employee benefits. [CMPSRV-NOBNFT]
For the avoidance of doubt, Provider and its employees and subcontractors (if any) are not entitled to par-
ticipate in any benefit program of Customer, including, for example, Customer's retirement- and stock-op-
tion programs, if any.
6.5 Commission payments
6.5.1 Provider will pay Reseller a commission, if Reseller (i) demonstrably makes the
main effort in originating and developing a sales transaction for <Products or Services>
but then, (ii) with Provider's approval, hands off the transaction to be closed directly by
Provider or through other channels. The commission amount will be based on Provider's
net first-year collected- and recognized revenue for the transaction> as follows: [CMSNS-PHSD]
TRANSACTION IS HANDED OFF WHEN THEPHASE BELOW IS SUBSTANTIALLY COMPLETED
COMMISSION PERCENTAGE (non-cu-
mulative)
Phase 0 (identify opportunity) <0%>
Phase 1 (investigate opportunity) <2%>
Phase 2 (needs analysis) <5%>
Phase 3 (present solution) <7%>
Phase 4 (sales proposal) <10%>
(1) Provider's determination of which phase that is for a particular transaction will be final and binding.
(2) The transaction phases referred to above are defined as follows:
Phase 0 – Identify an opportunity: Identify a potential customer and one or more initial customer
contact person(s); make a preliminary assessment of the customer's needs.
Phase 1 – Investigate the opportunity: Begin to position Provider's solutions with the customer;
identify the customer's relevant decision makers and executive sponsors; determine the cus-
tomer's purchase-decision processes and criteria; introduce Provider's solutions to the customer.
Phase 2 – Needs analysis: Identify one or more specific customer pains and Provider solution(s) to
address them; identify potential competition; define the customer's cost objectives and budget.
Phase 3 - Present a Provider solution: Show the customer how one or more specific Provider solu-
tions would address the customer' relevant pains; determine what the customer would want to
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 72 OF 97
see, by way of proof-of-concept testing, to be persuaded of technical fit; conduct the testing and
gain the customer's technical approval.
Phase 4 – Sales proposal: Complete a financial-impact analysis for the opportunity; create a
solution implementation plan and a detailed sales quotation; present all of the foregoing to the
customer.
(3) For the avoidance of doubt, such a commission will be Reseller’s exclusive compensation for its partici-
pation in any such transaction.
6.6 Payments
6.6.1 Payment terms are <net 30 days in U.S. dollars> unless otherwise agreed. [PMTS-TM]
If not otherwise agreed, all payments required pursuant to this Agreement are due, in the specified cur-
rency, the specified time after receipt of a correctly-stated invoice.
6.6.2 Payments <may> be made by <any method reasonably acceptable to the
payee>. [PMTS-HOW]
6.6.3 Interest <may> be charged at <5% per annum, not compounded>, or the maxi-
mum legal rate if less, on amounts remaining unpaid <more than 30 days after the due
date>. [PMTS-INRST] †
(1) Past-due amounts will bear interest if and as so specified.
(2) The parties intend for any interest charged or paid pursuant to this Agreement, in any contingency, to
comply with law. Consequently —
IF: One or more charges and/or payments hereunder are properly characterized as interest, and are deter-
mined to have exceeded the maximum interest permitted by law (after taking all permitted steps to spread
them over time);
THEN:
(A) The excess interest will be deemed the result of an inadvertent error, even if the party charg-
ing or paid the excess intended to take the action(s) resulting in the excess;
(B) if the excess interest has not yet been paid, the excess charge will be canceled; and
(C) if the excess interest has been paid, the party that was paid the excess will refund it, or credit
it to any balance still owed by the payer, along with interest on the excess at the maximum rate
permitted by law.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 73 OF 97
6.6.4 Provider will submit invoices, containing reasonable detail, <on such schedule
as may be agreed and/or as Customer may reasonably request in writing>. [PMTS-INV]
6.6.5 Electronic invoicing will be used if reasonably requested. [PMTS-INVELC] †
If seasonably requested by a payor, a payee will submit invoices via such electronic means as the payor may
reasonably specify.
6.6.6 Invoice submission deadline is <five business days after the end of each calen-
dar quarter> unless otherwise agreed (or the law provides otherwise). [PMTS-INVDDLN] †
Except as otherwise agreed, all invoices are due to the payor no later than the stated time unless the law (1)
expressly provides for later invoice submission and (2) does not permit contractual waiver or limitation.
6.6.7 A transaction order must be signed by both parties for any associated invoice
to be payable. [PMTS-SGNPO] †
6.6.8 Advance payments, if any, will be applied as agreed; any remaining balance will
be seasonably refunded without interest. [PMTS-ADVPMT]
6.6.9 Offsets against amounts owed by the payee <are> permitted. [PMTS-OFFST] †
If so specified, a payor may offset, against payments owed to a payee, any amount that is due and owed to
the payor by the payee.
6.6.10 Payment obligations are not contingent on the payor's receipt of money owed
to it unless expressly agreed otherwise. [PMTS-NOCNTG] †
6.6.11 <Prime-Contractor's> payment obligations are contingent on its receipt of pay-
ment from <End-Customer unless expressly agreed otherwise. [PMTS-CNTNG] †
6.6.12 Payment does not in itself prejudice the payor's rights or remedies unless oth-
erwise agreed. [PMTS-PMTNPRJD]
Unless otherwise agreed, payment of an amount pursuant to this Agreement, in and of itself, is without
prejudice to any right or remedy the payor may have against the payee and will not in itself waive any of
them.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 74 OF 97
6.6.13 Acceptance of full- or partial payment does not in itself prejudice the payee's
other rights or remedies unless otherwise agreed. [PMTS-ACCPNPRJ]
6.6.14 Payment disputes are to be timely raised. [PMTS-DSPT]
To help the parties manage their accounts receivable, IF: A party wishes to dispute an invoice or any other
claim that a stated amount is owed; THEN: The disputing party will (1) timely pay any undisputed portion;
and (2) seasonably furnish the payee with a written explanation of its dispute together with reasonable sup-
porting documentation.
6.6.15 Multiple or significant late payments may result in COD terms in the payee's
sole discretion. [PMTS-MLTLTPMT] †
6.6.16 Credit-card and bank-transfer payments: Provider is authorized to charge any
credit-card account and/or bank account specified by Customer for payments due under
this Agreement. [PMTS-CRDCRD] †
(1) Customer authorizes Provider —and represents and warrants that it has the right to do so — to charge
Customer payments due under this Agreement to the credit-card account(s) and/or bank account(s) speci-
fied by Customer.
(2) Customer will timely update its payment-account information with Provider.
(3) IF: For any reason Customer's credit-card issuer or bank does not transfer full payment, in response to a
Provider attempt to charge an amount due hereunder; THEN: Provider may treat the payment as past due.
6.7 Taxes
6.7.1 Sales taxes — Provider will timely report and remit them where required. [TXS-SLS]
Unless otherwise agreed, the specified party will timely report and remit, to the appropriate authorities, any
sales-, excise-, use-, or similar tax (collectively, sales taxes) due in respect of transactions under this Agree-
ment.
6.7.2 Provider will separately itemize any applicable sales taxes on invoices. [TXS-SLSINV]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 75 OF 97
6.7.3 Customer is not liable for Provider's> income taxes, etc. [TXS-NOINCM]
For the avoidance of doubt, the specified payor will not be liable for, and the specified payee will not in-
voice or attempt to collect from the payor, any taxes, duties, levies, and similar charges based on the
payee's employment of its personnel; production costs; equity; revenues; profits; or net income.
6.7.4 Customer may withhold taxes from payments to Provider as required by law. [TXS-WTHHLD] †
To the extent required by law, the specified payor may withhold, from payments to the specified payee un-
der this Agreement, any amount required to be withheld in respect of taxes. If the payor does so, it will
(1) timely report and remit all such amounts to the appropriate authorities, and (2) furnish the payee with a
written accounting of amounts withheld and amounts paid.
6.7.5 Tax indemnity: Any party collecting or withholding tax-related amounts pur-
suant to this Agreement (or obligated to do so) will defend and indemnify the party
from which the amounts were collected or withheld against claims of nonpayment of
those amounts. [TXS-INDM]
IF: A taxing authority or other person claims that a party failed to collect (or withhold) and remit some or all
of a tax, where that party was required to do so by this Agreement;
THEN: That party will defend the other party and its protected persons against the claim and indemnify
them against any monetary award resulting from the claim, such as (for example) interest charges and
penalties for late payment.
6.7.6 VAT: A party collecting or withholding VAT, etc., will provide reasonable docu-
mentation for refund claims upon request. [TXS-VATRFND]
IF: A party invoices another party for refundable taxes such as value-added taxes, or withhold and remits
such taxes to tax authorities;
THEN: At the other party's request, the first party will provide the other party with reasonable documenta-
tion to support claims for refunds of such taxes.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 76 OF 97
7. Dispute management
7.1 Breach
7.1.1 Notice of breach should be seasonably given by the nonbreaching party. [BRCH-NTC]
(1) For the avoidance of doubt, the nonbreaching party will not be liable, for breach of contract or other-
wise, for any failure to give seasonable notice of breach.
(2) IF: A nonbreaching party unreasonably delays giving notice of breach to the breaching party; BUT: Under
the circumstances, the delay does not amount to a waiver of the breach; THEN: The delay may be taken
into account, and given due weight, in determining the relief (if any) to which the nonbreaching party is en-
titled.
7.1.2 Breaches are waived if notice is not given within <30 days> after discovery. [BRCH-WVRNTC] †
IF: In case of an alleged breach of this Agreement, the nonbreaching party does not give notice of the
breach within [the specified time] after it knows or, in the exercise of reasonable diligence, should have
known of the breach;
THEN; The nonbreaching party will be deemed to have waived that breach.
7.1.3 Cure periods for breaches, beginning upon the effective date of notice of
breach, are as stated in the table below: [BRCH-CRPD] †
TYPE OF BREACH CURE PERIOD
Nonpayment of an amount due 5 business days
Failure to meet an agreed deadline 1 business day
Other curable breaches 30 days
Noncurable breaches None
7.1.4 The breaching party will provide status reports concerning its curative efforts
(if any) upon reasonable request. [BRCH-STSRPT] †
At the nonbreaching party's reasonable request from time to time, a party in breach of this Agreement will
provide the nonbreaching party with reasonable information about its curative efforts, if any, including
(where applicable) progress, problems, plans, and assumptions.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 77 OF 97
7.1.5 Multiple- or repeated breaches may be collectively deemed a material breach. [BRCH-MLTMTL] †
In appropriate circumstances, multiple- or repeated non-material breaches, even though cured, may in the
aggregate constitute a material breach.
7.1.6 The nonbreaching party may suspend its performance in cases of material
breach. [BRCH-SSPDPRFM] †
In cases of material breach, the nonbreaching party may in its discretion suspend performance of its own
obligations under this Agreement until the breach is substantially cured.
7.1.7 Mitigation: The nonbreaching party will use <reasonable> efforts to mitigate its
damages from breach. [BRCH-MTGTN] †
In the event of a breach of this Agreement, the non-breaching party will use the specified efforts to mitigate
its damages arising from or relating to the breach.
7.1.8 Limitation period: Any action or proceeding for breach of any promise or war-
ranty in this Agreement (which for this purpose includes any action for misrepresenta-
tion) must be commenced within <X years after the non-breaching party knew or should
have known of the breach>. [BRCH-LMPD] †
7.2 Settlement encouragement
7.2.1 Disagreements shall be escalated at either party's request. [STLM-DSPTESCL]
(1) Whenever requested by either party, the parties will jointly refer any disagreement between them to
their respective higher management levels, including executive-level management where appropriate.
(2) In the interest of avoiding satellite litigation, neither party will be liable, for breach of contract or other-
wise, for any alleged failure to appropriately escalate a dispute, in and of itself.
7.2.2 Early neutral evaluation of disputes (non-binding) is mandatory upon request,
per the Early Neutral Evaluation Procedures of the American Arbitration Association or
other agreed procedures. [STLM-ENE]
(1) In any dispute, at either party's request the parties will jointly consult an experienced, knowledgeable,
neutral individual, informally and in confidence, for non-binding advice as to what would constitute a re-
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 78 OF 97
sponsible resolution of the dispute. (2) Any procedural disagreement concerning the consultation will be re-
solved by reference to the Early Neutral Evaluation Procedures of the American Arbitration Association, to
the extent not inconsistent with this Agreement.
7.2.3 Early neutral evaluation of disputes is mandatory before initiating litigation or
arbitration (with certain exceptions). [STLM-ENELIT]
(1) Apart from the exceptions below, neither party will file a lawsuit nor make a demand for arbitration, as
the case may be, unless the parties have tried and failed to resolve the dispute through early neutral evalua-
tion in accordance with this Agreement. (2) EXCEPTIONS: A lawsuit may be filed, or a demand for arbitra-
tion made, if necessary: (i) to comply with a statute-of-limitations deadline; or (ii) to seek immediate equi-
table relief — for example, a temporary restraining order or preliminary injunction — to prevent irreparable
harm.
7.2.4 Mediation (non-binding) of any dispute will be scheduled as soon as practicable
upon request by either party. Unless otherwise agreed, the mediation will be adminis-
tered by <the American Arbitration Association under its Commercial Mediation Rules>. [STLM-MED] †
7.2.5 Attorneys' fees shifting – a party rejecting a settlement offer, but failing to
achieve a more-favorable result in a final judgment or arbitration award, must pay the
other party's post-offer fees and expenses. [STLM-FEESHFT]
(1) The intent of this clause is to create incentives for the parties to make and to accept (as the case may
be) reasonable offers to settle any disputes that may arise between them.
(2) IF: (i) a dispute gives rise to a final judgment or arbitration award from which no further appeal is
taken or possible; (ii) before the judgment or award became not further appealable, a party made a
settlement offer to an adverse party in accordance with this clause; (iii) the adverse party did not ac-
cept the settlement offer; and (iv) the judgment or award is not more favorable to the adverse party
than the unaccepted offer.; THEN: The adverse party shall reimburse the offeror for any and all of the
following that the offeror incurred after making the offer: (x) costs; and (y) the offeror's reasonable ex-
penses of litigation, arbitration, and/or appellate proceedings arising out of the dispute, including but
not limited to reasonable fees and expenses for attorneys and expert witnesses. For the avoidance of
doubt, such reimbursement is in addition to any other relief to which the offeror may be entitled.
(3) A settlement offer under this clause must: (i) be made in accordance with this Agreement’s notice pro-
visions; and (ii) expressly and conspicuously state that failure to accept the offer within a stated dead-
line, not less than 10 business days from receipt of the offer, could result in an award of attorneys' fees
and expenses against the adverse party pursuant to this section.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 79 OF 97
(4) A settlement offer, made under this section, that is not timely accepted in writing, is considered with-
drawn, but does not preclude a later offer.
(5) An adverse party's making of a counter-offer shall not be deemed a rejection of a pending offer, which
shall remain open until accepted or withdrawn as provided herein.
(6) Each party shall preserve in strict confidence the existence and details of (i) any offer made by either
party pursuant to this section and (ii) any communications between the parties regarding the offer.
(7) Evidence of an unaccepted offer is not admissible in any proceeding to adjudicate or arbitrate the dis-
pute except to determine costs and expenses.
7.2.6 To be "more favorable," (i) a judgment or award to the claimant must be least
<120%> of the defendant's settlement offer; (ii) a judgment or award to the defendant
must be less than <80%> of the claimant's settlement offer. [STLM-FEESHFTMFVB]
For purposes of this section: IF: A judgment or arbitration award includes an award of monetary damages to
the adverse party; AND: The offer to settle provided for a monetary payment to the adverse party; THEN:
The judgment or award will not be deemed more favorable to the adverse party unless the monetary dam-
ages, exclusive of allowable prejudgment interest and counsel fees, is at least the specified percentage of
offered monetary payment.
7.3 Litigation management
7.3.1 Forum selection — <location> is <a non-exclusive jurisdiction> for any action
<arising out of> this Agreement <or any relationship resulting from it>. [LTGMGMT-FRMSLC] †
(1) The court(s) and/or other tribunal(s) having subject-matter jurisdiction in the specified location will have
jurisdiction of any specified action. (2) Such jurisdiction is non-exclusive unless otherwise stated.
7.3.2 Forum selection does not apply to non-party actions. [LTGMGMT-FRMNPTY]
The forum-selection provisions of this Agreement are not intended to apply to actions or proceedings initi-
ated by non-parties to this Agreement.
7.3.3 The governing law is that of <location> for the interpretation of this Agreement
and all disputes <arising out of> it. [LTGMGMT-GOVLAW] †
The interpretation of this Agreement, and the specified disputes arising out of it (and if so specified, all dis-
putes relating to it) are to be decided in accordance with the law in effect in the specified location, without
regard to any conflicts-of-law principles that would result in the application of a different law.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 80 OF 97
7.3.4 Governing law exclusions — The following do not apply to this Agreement:
<(1) the United Nations Convention on Contracts for the International Sale of Goods;
(2) the Uniform Computer Information Transactions Act; (3) the American Law Insti-
tute's Principles of the Law of Software Contracts>. [LTGMGMT-GOVLAWEXCL]
(1) The parties expressly agree that the specified laws and/or principles are not to be given effect in the in-
terpretation or enforcement of this Agreement. (2) This clause is not to be deemed an agreement or ac-
knowledgement that any of the specified laws and/or principles would apply to this Agreement without this
clause's disclaimer.
7.3.5 Attorneys' fees: The <prevailing-party rule > applies. [LTGMGMT-ATTFEE] †
Definitions: (1) Action refers to any action or proceeding between the parties — judicial, administrative, ar-
bitral, or otherwise — arising out of or relating to this Agreement. (2) American rule: In any action, each
party will bear its own expenses and costs. (3) Costs refers to costs of the action, for example costs of
court . (4) Expenses refers to reasonable attorneys' fees and expenses incurred in the action, including for
example expert-witness fees and expenses. (5) Prevailing party rule: In any action, in addition to any other
relief awarded, the prevailing party is entitled to recover its expenses and costs. (6) Texas rule: A party enti-
tled to relief from another party for breach of this Agreement may recover, in addition to such relief, its ex-
penses and costs.
7.4 Arbitration
7.4.1 Any dispute <arising out of> this Agreement <or any transaction or relationship
resulting from it> that is not settled by the parties themselves will be resolved by bind-
ing arbitration under <the U.S. Federal Arbitration Act and the law governing this Agree-
ment>. [ARBITR-CLS] †
This agreement to arbitrate encompasses all disputes, claims, and controversies (i) arising out of this Agree-
ment, including for example concerning its interpretation, performance, or breach; and (ii) if so specified,
(x) relating to this Agreement, including for example any tort- or statutory claim, and/or (y) arising out of or
relating to any transaction or relationship resulting from this Agreement; will be resolved by binding arbitra-
tion.
7.4.2 Any dispute whether a reasonableness standards stated in this Agreement has
been met will be resolved by binding arbitration under <the U.S. Federal Arbitration Act
and the law governing this Agreement>. [ARBITR-RSNBL] †
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 81 OF 97
Possible examples of reasonable standards include: A reasonable time; reasonable cooperation; reasonable
efforts; etc.
7.4.3 IF: A potentially-dispositive issue in a dispute between the parties is required to
be arbitrated under this Agreement, but the broader dispute itself is not expressly re-
quired to be arbitrated; THEN: Except for good cause clearly shown, the parties will
jointly seek to stay any other proceedings that may be pending, or later initiated, con-
cerning the dispute until a final disposition of that issue. [ARBITR-ISSUESTAY] †
7.4.4 The amount of any monetary award in any dispute <arising out of> this Agree-
ment <or any transaction or relationship resulting from it> will be resolved separately,
by binding arbitration under <the U.S. Federal Arbitration Act and the law governing this
Agreement>. [ARBITR-MNTAWD] †
For the avoidance of doubt, this clause applies to any dispute in any forum of any kind.
7.4.5 Any arbitration award made pursuant to this Agreement will be enforceable in
<any court of competent jurisdiction>.
7.4.6 All other claims of any nature that may arise between the parties before termi-
nation of this Agreement are covered by this agreement to arbitrate. [ARBITR-OTHCLM] †
In the interest of promoting consistency in their business relationship, the parties agree to arbitrate any and
all other claims, of whatever nature, that may arise between them during the life of this Agreement, in ac-
cordance with the arbitration provisions of this Agreement.
7.4.7 The arbitration rules will be <the Commercial Arbitration Rules of the American
Arbitration Association (AAA)>. [ARBITR-RLS]
The arbitration will be conducted in accordance with the specified rules, to the extent not inconsistent with
this Agreement.
7.4.8 The arbitration panel will consist of <a single arbitrator>. [ARBITR-PNL]
7.4.9 Disputes about arbitrability are to be decided by <the arbitration panel><, as
well as disputes about the enforceability of the agreement to arbitrate>. [ARBITR-DSPTARB] †
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 82 OF 97
7.4.10 Arbitrator qualifications: An arbitrator must <be a member of the bar of any ju-
risdiction who has experience in the general field of the dispute>. [ARBITR-QLF]
Any person serving as an arbitrator, in addition to meeting any relevant requirements of applicable arbitra-
tion rules, must meet the specified qualifications.
7.4.11 The place of the arbitration will be <as agreed by the parties, or if not agreed,
as determined by the AAA>. [ARBITR-PLC] †
7.4.12 The arbitration will be administered by <the parties themselves > unless
otherwise agreed. [ARBITR-ADMN]
7.4.13 Temporary relief: Notwithstanding any arbitration requirement in this Agree-
ment, a party may apply to any court of competent jurisdiction for temporary, interim,
or preliminary injunctive relief, without waiver of its right to arbitration. [ARBITR-TRO] †
7.4.14 Awards must be per the agreement and applicable law. [ARBITR-PERAGR]
The arbitration panel shall decide the dispute in accordance with this Agreement and applicable law (includ-
ing for example statutes of limitation or -repose) and not as amiable compositeur or ex aequo et bono.
7.4.15 The arbitration panel may act as amiable compositeur and ex aequo et bono in
rendering its award. [ARBITR-AMBLCMP] †
7.4.16 The arbitration panel is authorized and directed to streamline the proceedings
to the extent reasonably possible, including for example (where appropriate) dividing
the proceeding into separate phases to address selected issues. [ARBITR-STRMLN]
(1) The arbitration panel is authorized and directed to take reasonable measures to streamline and expedite
the arbitration proceedings at all stages. (2) For the avoidance of doubt, the parties, by agreement, may
overrule any particular procedural decision of the arbitration panel.
7.4.17 The arbitration hearing should be conducted on consecutive days. [ARBITR-CNSCDS]
In the interest of reducing inefficiencies and the attendant extra expense, the arbitration hearing should be
conducted on consecutive days if at all practicable.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 83 OF 97
7.4.18 Multiple arbitrators shall stay together until they render an award. [ARBITR-STY]
In any arbitration involving a multi-arbitrator panel, in the interest of reducing potential delays and ineffi-
ciencies and the attendant extra expense, after the conclusion of the hearing the panel members are to re-
main together, at the hearing location or other agreed location, until they have rendered the award.
7.4.19 Enhanced appellate review of the award is agreed to as though the award were
a judgment in a civil trial to <the court> in a U.S. district court. [ARBITR-APPLREV] †
(1) The arbitration panel's powers do not include the power to render an award based: (A) on errors of law
or legal reasoning, nor (B) on evidence that would not satisfy the requirements of law in the specified type
of judicial proceeding.
(2) The parties agree that any award that is so based, in whole or in part, shall be appealable to a court of
competent jurisdiction on grounds that the arbitration panel thereby exceeded its agreed powers.
7.4.20 Findings of fact and conclusions of law are to be included in the award. [ARBITR-FFCL]
Unless otherwise agreed, the arbitration panel shall set forth written findings of fact and conclusions of law
in its award.
7.4.21 A transcript of oral testimony is to be provided. [ARBITR-TRNSC]
Unless otherwise agreed, the arbitration panel shall provide the parties with a court reporter's transcript of
all oral testimony.
7.4.22 Joint arbitration expenses are to be shared equally unless the award specifies
otherwise. [ARBITR-JTEXP]
Unless otherwise agreed:
(1) Each party will bear its own expenses of the arbitration.
(2) All other expenses of the arbitration will be borne equally by the parties unless the arbitration panel
duly assesses some or all of such expenses against one or more specified parties (for the avoidance of
doubt, this clause does not in itself give the arbitration panel the power to do so).
7.4.23 Survival: The arbitration provisions of this Agreement will survive any termina-
tion or expiration of the Agreement in respect of any arbitrable matter that arose before
such event. [ARBITR-SRVVL]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 84 OF 97
7.4.24 Arbitration proceedings are confidential except as necessary for enforcement
purposes. [ARBITR-CONF]
7.4.25 Third-party participants in transactions under this Agreement <may> enforce
these arbitration provisions against a party. [ARBITR-THDPTYXCT] †
(1) The parties anticipate that one or more individuals or organizations in addition to themselves — that is,
non-parties to this Agreement — may participate in one or more transactions or relationships arising out of
this Agreement.
(2) If but only if so specified, each such non-party will have the right to enforce the arbitration provisions
hereof, as a third-party beneficiary of those provisions, against any party to this Agreement.
7.4.26 Each party acknowledges that it is waiving its right to trial by jury (if any) by
agreeing to these "Arbitration" provisions. [ARBITR-WVRJRY]
8. Termination
8.1.1 Termination and termination of this Agreement, unless otherwise clear from
the context, encompass both (i) termination of this Agreement, and (ii) expiration or
nonrenewal of this Agreement, in either case for any reason. [TRMN-DFN]
8.1.2 A nonbreaching party may terminate this Agreement, in response to an un-
cured <material> breach, by giving written notice of termination. [TRMN-BRCH]
If a specified breach of this Agreement is not timely cured (see the Breach section), then the nonbreaching
party may terminate this Agreement by giving written notice of termination, effective with the notice.
8.1.3 <Either party> may terminate this Agreement for convenience by giving <rea-
sonable> prior written notice to the other party. [TRMN-UNL]†
8.1.4 "Termination for convenience" means termination for any reason or no reason,
in the sole and unfettered discretion of the terminating party, without reference to any
standard of reasonableness, good faith, or fair dealing. [TRMN-UNLGDFTH]†
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 85 OF 97
8.1.5 <Neither party> may terminate this Agreement for convenience before
<DATE> (not applicable if no date is filled in).> [TRMN-UNLDT] †
8.1.6 <Either party> may terminate this Agreement upon <the other party's> insol-
vency, etc., effective <five days after> written notice of termination. [TRMN-INSOLV]
The specified party or parties may terminate this Agreement, effective at the stated time five days after
written notice of termination, if the other specified party does any of the following: (1) ceases to do
business in the normal course; (2) becomes insolvent; (3) admits in writing its inability to meet its debts or
other obligations as they become due; (4) makes a general assignment for the benefit of creditors; (5) has a
receiver appointed for its business or assets; (6) files a voluntary petition for protection under the
bankruptcy laws; (7) becomes the subject of an involuntary petition under the bankruptcy laws that is not
dismissed within 60 days.
8.1.7 <Either party> may terminate for <material> bad-PR conduct by <the other
party>, effective <five days> after written notice. [TRMN-BDPR] †
The specified party may terminate this Agreement, effective at the stated time, if the other specified
party engages in conduct creating a significant risk of damage to the terminating party's business reputa-
tion.
8.1.8 <Either party's> merger or affiliation with a competitor of <the other party> is
grounds for <the other party> to terminate upon <90 days'> notice. [TRMN-MRGR] †
The specified party or parties may terminate this Agreement effective upon 90 days' prior written no-
tice if the other specified party merges with, or becomes an "affiliate" (as defined in this Agreement) of, a
competitor of the terminating party.
8.1.9 If <Reseller> undergoes a change of control, Provider may terminate this Agree-
ment effective <immediately> by giving notice of termination. [TRMN-CHCTL] †
For the purposes of this clause, “control” means the ability to direct the affairs of another whether by
virtue of the ownership of shares, contract or otherwise.
8.1.10 The deadline for any <non-breach> termination is <30 days> after the right to
terminate arises. [TRMN-DDLN] †
The specified right(s) to terminate must be exercised, otherwise it will be deemed waived, within the stated
time after the party having the termination right becomes aware of the event(s) giving rise to the right.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 86 OF 97
8.1.11 Specific transactions may be terminated without terminating this Agreement. [TRMN-XCT]
(1) A party that has the right to terminate this Agreement upon the occurrence of an event other than
breach or for convenience, as set forth above, may instead, at its option, terminate one or more specific
pending transactions entered into pursuant to this Agreement.
(2) All provisions of this Agreement concerning termination of this Agreement will apply to termination of
such transactions (any necessary changes being made).
8.1.12 Cross-default: <Any party> entitled to terminate one transaction <for material
breach> may terminate <any other transaction> between the parties. [TRMN-XDFLT] †
8.1.13 Certain rights and obligations will survive termination or expiration. [TRMN-SURV]
(1) The rights and obligations set forth in this Agreement (if any) concerning the following subjects, along
with any others specified herein, will survive termination: (A) confidentiality; (B) indemnification and de-
fense against third-party claims; (C) intellectual-property ownership; (D) warranty rights and -disclaimers;
(E) remedy limitations; (F) choice-of-law; (G) choice-of-forum.
(2) For the avoidance of doubt, termination will not affect already-accrued rights and obligations hereunder.
8.1.14 Alternative grounds for termination may be relied on in hindsight. [TRMN-ALTGNDS]
IF: A party terminates this Agreement or a transaction under it for a stated reason; BUT: The stated reason
later is found not to be applicable; THEN: The termination will be deemed to have been made for any other
reason that could have been stated by the terminating party.
8.1.15 Each party will take reasonable post-termination wrap-up actions. [TRMN-WRAP]
(1) Upon termination, the parties will take such action (if any) as may be reasonably necessary to wrap up
their relevant business together in a responsible manner. (2) Each party's action in this regard is to be at its
own expense unless (A) otherwise provided by law or by this Agreement or (B) otherwise agreed in writing.
8.1.16 Termination for breach is without prejudice to any other remedies available to
the non-breaching party except as expressly agreed otherwise. [TRMN-NPRJD]
8.1.17 <Reseller> will discontinue all use of Provider's> trademarks immediately upon
termination. [TRMN-DSCTMK]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 87 OF 97
Such discontinuance is to include, for example, the specified party's ceasing to identify or represent itself, in
any way, as associated with the other party.
8.1.18 Reseller may continue to fulfill any pre-existing technical support obligations
to its customers after termination. [TRMN-CNTSPT]
For the avoidance of doubt, this right to continue support does not extend to (i) support that Reseller would
not have been authorized by this Agreement to provide before termination, nor (ii) support obligations that
Reseller did not contractually commit to before termination.
8.1.19 Any licenses that Reseller sold to end customers before termination will survive
that event. [TRMN-LICSURV]
8.1.20 Reseller may sell off any existing inventory in its possession for <one month>
after termination. [TRMN-SLOFF]
8.1.21 Reseller may continue, for <one month> after termination of this Agreement
(other than termination for breach by Reseller), <on a non-exclusive basis>, working to
close active sales opportunities it designated in writing to Provider, if any, within the
<one month> prior to termination. [TRMN-CLSSLS] †
Provider's determination whether a particular sales opportunity is active at termination will be final and
binding.
9. General provisions
9.1 Amendments
9.1.1 Amendments must be express and in writing. [AMND-WRTG]
This Agreement may not be amended except by a written document, signed by the parties, that expressly
(1) refers to this Agreement, so as to avoid disputes whether "stray" language constitutes an amendment;
(2) states that this Agreement is being amended, and (3) sets out the amendment's terms.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 88 OF 97
9.1.2 Amendments must be signed by officers. [AMND-OFFSIG] †
Any amendment or rescission of this Agreement must be signed by officers of the parties; for purposes of
this clause, the term 'officer,' in respect of an organization that does not have officers per se, refers to indi-
viduals having authority and responsibility in the organization comparable to that of an officer of a corpora-
tion.
9.1.3 Provider may unilaterally amend <this Agreement>, effective <30 days> after
notice to Customer, unless Customer sooner terminates this Agreement by notice to
Provider. [AMND-UNLAMD] †
(1) The specified party may, from time to time, give the other party written notice of amendment to this
Agreement or the specified portion of it (for example, a schedule), as stated.
(2) Subject to any exceptions that may be expressly stated in this Agreement, any such amendment will au-
tomatically become effective as specified in the notice UNLESS, within the specified time after receiving the
notice, the other party responds by giving notice of termination of this Agreement.
9.1.4 Unilateral amendments will apply only going forward, to new transactions and
renewals, except as otherwise agreed. [AMND-UNLAMDFWD]
(1) Unless otherwise agreed, any unilateral amendment will be effective only on a going-forward basis, that
is, as to (A) new transactions agreed to after the end of the other party's response period, and (B) agreed re-
newals of expiring renewable transactions.
(2) For the avoidance of doubt, a unilateral amendment will not retroactively modify any vested right of the
non-amending party, nor any vested obligation of the amending party, under this Agreement.
9.1.5 Unilateral amendments apply to all transactions under this Agreement, subject
to Customer's right to opt out for completed- or pending transactions. [AMND-UNLAMDOPT] †
(1) Except as otherwise agreed, any unilateral amendment will be effective as to all transactions under this
Agreement, including completed- and pending ones.
(2) A non-amending party may opt out of having a particular such amendment apply to one or more com-
pleted- or pending transactions by giving the amending party notice to that effect before the amendment
takes effect
9.1.6 Unilateral amendments will not retroactively modify dispute-resolution provi-
sions for pending disputes unless otherwise agreed. [AMND-UNLAMDADR]
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 89 OF 97
IF: A unilateral amendment to this Agreement modifies dispute-resolution provisions hereof (such as, for ex-
ample, arbitration provisions, if any);
AND: At the time the amendment becomes effective, a party has given notice of a dispute that is subject to
those dispute-resolution provisions;
THEN: The dispute-resolution provisions as in effect immediately prior to the amendment will continue to
apply to that particular dispute unless the parties specifically agree otherwise.
9.2 Assignment
9.2.1 Assignment of this Agreement by <either party> requires consent of <the other
party>. [ASSGMT-CNST] †
The specified party (or parties; each a restricted party) may not assign this Agreement without the prior
written consent of the other specified party except to the extent (if any) expressly authorized by this Agree-
ment. Any other purported assignment of this Agreement by a restricted party will be void.
9.2.2 Assignment restrictions apply to changes of control, including for example a
change of stock ownership of <50%> or more. [ASSGMT-CHCTL] †
(1) A specified party will not consummate a restricted transaction, as defined below, with an individual, en-
tity, or group (the "acquirer") unless this Agreement would permit the specified party to assign the Agree-
ment to the acquirer.
(2) A "restricted transaction" is one in which the acquirer acquires ownership of
(A) at least the specified percentage of the shares of the party's stock entitled to vote for the elec-
tion of directors (or of equivalent ownership interests in a non-corporate party), or
(B) substantially all the assets of at least that portion of the party's business relating specifically to
the subject matter of this Agreement.
9.2.3 Assignment consent is not required in cases involving certain asset dispositions. [ASSGMT-ASSTDSP]
IF: This Agreement or applicable law requires consent of the other party to a party's assignment of this
Agreement; THEN: No consent is required if the assignment is to be made in conjunction with a sale or
other disposition of substantially all the assets of the assigning party's business of which the subject matter
of this Agreement is a part.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 90 OF 97
9.2.4 Provider may divisibly assign this Agreement, as to a particular <Product or Ser-
vice> or a particular portion of the Territory, in connection with a sale or other disposi-
tion of substantially all of its assets that specifically relate to that <Product or Service>
or that portion of the Territory. [ASSGMT-DVSBL]
In that case, the Agreement will remain unassigned as to any remaining <Products and Services> and any re-
maining portion(s) of the Territory.
9.2.5 Assignment to a control-relationship affiliate by <either party> does not require
consent. [ASSGMT-CTLRLAFFL] †
IF: This Agreement or applicable law requires consent of the other party to any assignment of this Agree-
ment; THEN: The specified party may assign this Agreement without such consent to an individual or entity
that qualifies as an 'affiliate' of the assigning party by virtue of a control relationship (direct, indirect, or
common) between the two.
9.2.6 Assignment consent may not be unreasonably withheld or delayed. [ASSGMT-NWTHDL] †
(1) A party entitled to consent to an assignment of this Agreement may not unreasonably withhold or delay
it.
(2) For the avoidance of doubt, IF: In breach of this Agreement, a party unreasonably withholds or delays its
consent to assignment; THEN: The resulting damages, if any, are to be deemed direct damages and there-
fore are not subject to any exclusion or limitation on consequential damages.
9.2.7 Assignment consent is discretionary. [ASSGMT-DSCRT] †
Consent to an assignment requiring it may be granted or withheld in the consenting party's sole discretion.
9.2.8 Assignments will be promptly communicated to the other party afterwards. [ASSGMT-COMM]
9.2.9 Assignment: Any prior notification of a potential assignment will be preserved
in strict confidence. [ASSGMT-NTCCONF]
IF: A party elects to advise another party of a potential assignment of this Agreement in connection with a
transaction that has not been publicly announced;
THEN: At the assigning party's request the other party will preserve all information disclosed to it about the
transaction (including for example the existence or the pending negotiation of the transaction) in strict con-
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 91 OF 97
fidence, including compliance with any applicable insider-trading laws, until the disclosed information be-
comes publicly known.
9.2.10 Assignment: <A nonassigning party> may terminate this Agreement, with limita-
tions, within <60 days> after any assignment by <the assigning party>. [ASSGMT-TRMN] †
(1) IF: A specified party assigns this Agreement; THEN: The nonassigning party may terminate this Agree-
ment, in its discretion, by giving notice of termination, to both the assigning party and the assignee, no later
than the specified time after receiving notice that the assignment has been effected. (2) For the avoidance
of doubt, this clause does not in itself expand or limit a party's ability to assign this Agreement.
9.2.11 Assignment implies delegation of future obligations. [ASSGMT-DLGTN]
For the avoidance of doubt:
(1) An assignment of this Agreement has the effect of both assigning all rights and delegating all post-assign-
ment obligations of the assigning party.
(2) An assignment does not relieve the assigning party of responsibility for its pre-assignment obligations, if
any, unless agreed otherwise by the non-assigning party.
9.2.12 Assignment breaches are deemed material. [ASSGMT-BRCHMTL] †
9.3 Interpretation
9.3.1 Additional or different terms in purchase orders, invoices, etc., have no effect,
except those qualifying as amendments. [INTRP-ADDLTMS]
(1) For the avoidance of doubt, neither party is obligated to give effect to additional or different terms ('new
terms') in any purchase order, confirmation, invoice, or similar document that may be provided by the other
party in connection with this Agreement ('new-terms document') unless the new-terms document meets
the requirements of this Agreement to be an amendment hereof.
(2) Performance of actions called for by a new-terms document, without more, is not to be deemed the per-
forming party's assent to the new terms.
9.3.2 Ambiguities are not to be automatically resolved against the drafter (no contra
proferentem interpretation). [INTRP-NCNTRPRF]
Any ambiguities or inconsistencies in this Agreement are to be resolved in accordance with the most rea-
sonable construction and not strictly for or against either party.
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 92 OF 97
9.3.3 The English language, as used in <the USA>, is authoritative. [INTRP-ENGL]
(1) By express agreement of the parties, this Agreement and certain of its appendixes, exhibits, and attach-
ments, if any, are written in and shall be interpreted for all purposes in accordance with the English lan-
guage as used in the specified location.
(2) French translation (may be required in Québec) : Les parties conviennent expresssément que le présent
Accord ainsi que toutes ses annexes seront rédigés en langue Anglaise et interprétés par référence à la
terminologie utilisée aux Etats-Unis.
(3) In the event of a disparity between the English version and any non-English version of this Agreement,
the English version will govern.
9.3.4 Invalidity of one provision does not affect others. [INTRP-SVRN]
IF: Any provision of this Agreement is held to be invalid, void, unenforceable, or otherwise defective by a tri-
bunal of competent jurisdiction; THEN: (1) all other provisions will remain enforceable, and (2) the provision
will be deemed modified, solely in the jurisdiction in question, to the minimum extent necessary to cure the
defect.
9.3.5 Third-party beneficiaries are disclaimed except as expressly stated. [INTRP-NTHDPTY]
For the avoidance of doubt, no individual or organization is entitled to claim any right, remedy, or benefit,
of any kind, under this Agreement except: (1); the signatories to this Agreement and their respective succes-
sors and permitted assigns; and (2); to the extent, if any, that this Agreement expressly states otherwise.
9.3.6 Waivers by <either party> must be in writing, and are to be strictly construed,
except as may be otherwise agreed. [INTRP-WVRSTR]
A purported waiver by a specified party of a particular condition, right, remedy, obligation, or breach of this
Agreement (collectively, entitlements): (1) is to be given effect only if it is expressly stated in a writing
signed by that party; (2) is to be strictly construed; (3) is not to be construed as a waiver by that party of
any other entitlement; and (4) for the avoidance of doubt, is not to be implied from the party's non-asser-
tion of an entitlement on one or more occasions.
9.4 Notices
9.4.1 Notices must be in writing and addressed (i) to a specific individual or (ii) to the
attention of a specific position. [NTC-WRTG] †
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 93 OF 97
9.4.2 Notices are effective upon receipt or refusal by an individual who is either (i) the
addressee or (ii) the addressee's agent for purposes of receiving communications of the
type sent. [NTC-EFFCT] †
9.4.3 Notices sent by email are effective (i) when actually read by an individual who is
the addressee or the addressee's agent for purposes of receiving communications of the
type sent, or (ii) if earlier, when such an individual accesses the receiving email system
at a time when the notice is available to be read in that system. [NTC-EML]
9.4.4 Addresses for notice are as stated herein or as otherwise reasonably communi-
cated. [NTC-ADDRCHG]
Notices may be sent to the parties' respective addresses shown in this Agreement, or to such other address
as a party designates by notice or by other reasonable written communication.
9.4.5 Notices — counsel should preferably be copied on significant notices such as
those of breach or termination. [NTC-CPYCNSL]
Any party sending a specified notice is encouraged (but not required) to separately send a courtesy copy, by
any reasonable method, to the attention of the general counsel of the party being notified.
9.4.6 Undeliverable notices are deemed effective after reasonable delivery efforts. [NTC-UNDLVBL] †
IF: A party is unable, after reasonable efforts, to cause notice to be delivered to another party, either at its
then-current address for notice or at another address at which it can be found, THEN: The notice will be
deemed to have been delivered as of the completion of such reasonable efforts.
9.5 Other provisions
9.5.1 Email and FAX communications are authorized between <the parties> (see also
the notices provisions of this Agreement). [OTHR-EMLFAXOK]
Each specified party authorizes the other party to communicate with it by email and FAX as well as via
postal and delivery services. (See also the Notices provisions for additional requirements.)
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 94 OF 97
9.5.2 Entire agreement: This Agreement is the parties' final, complete, and exclusive
agreement concerning its subject matter. [OTHR-ENTRAGRMT]
This Agreement, including any exhibits, attachments, riders, or appendices as well as any other document
expressly incorporated by reference, is the parties' final, complete, exclusive, and binding statement of the
terms and conditions of their agreement concerning its subject matter; except as stated in this Agreement,
there are no promises, understandings, representations, or warranties of any kind between the parties con-
cerning that subject matter.
9.5.3 <Neither party is> relying on any other representation by <the other party>. [OTHR-NEXTRNLRP] †
9.5.4 Expenses of negotiations are to be borne by the party incurring them except as
otherwise agreed. [OTHR-EXPNS]
As between the parties, except as expressly stated in this Agreement or expressly otherwise agreed, each
specified party will be responsible for its own expenses that it paid or incurred in connection with the plan-
ning, negotiation, signature, and performance of this Agreement, as well as for any expenses that it may pay
or incur in the future in that regard.
9.5.5 The parties are independent contractors; <each party> will conduct <itself> ac-
cordingly. [OTHR-INDPK]
(1) Except as may be expressly provided otherwise in this Agreement, the parties intend for their relation-
ship defined by this Agreement to be strictly that of independent contractors; each party will conduct itself
accordingly.
(2) Neither party will hold itself out as an employee, agent, partner, joint venturer, division, subsidiary, or
branch of the other party, and nothing in this Agreement is to be interpreted as creating any such relation-
ship between the parties.
(3) Neither party has, nor will it hold itself out as having, authority to make commitments or representa-
tions on behalf of the other party except to the extent, if any, that this Agreement expressly states other-
wise.
(4) For the avoidance of doubt, except as may be expressly stated otherwise in this Agreement, no signatory
party, in entering into this Agreement, intends to enter into a fiduciary relationship with, nor to commit to
acting on behalf of or for the benefit of, any other individual or organization. indemnity and defense proce-
dures section
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 95 OF 97
9.5.6 <Each party> will defend and indemnify <the other> against third-party claims
arising from failure to conduct itself as an independent contractor. [OTHR-INDPKINDM] †
Each specified party will defend and indemnify the other party and its protected persons against any third-
party claim arising from the specified party's failure to conduct itself as an independent contractor pursuant
to this Agreement.
9.5.7 Prohibitions and restrictions extend to attempts, inducing, aiding, etc. [OTHR-PRHB]
Wherever this Agreement prohibits or restricts a party from doing something, that party is also prohibited
or restricted from attempting to do so and from inducing, soliciting, permitting, or knowingly assisting any-
one else to do so, whether for its own benefit or otherwise.
9.5.8 Redlining — each party (i) represents that it has flagged all of its changes to
drafts of this Agreement, and (ii) agrees to flag all future changes to drafts of related
documents. [OTHR-RDLN]
(1) The parties have reviewed (and, if applicable, negotiated) this Agreement in its electronic form. They
desire to be able to sign the hard-copy version without having to re-read the hard copy to confirm that no
unauthorized changes were made before the final printout.
(2) Toward that end, by signing and delivering this Agreement and/or any schedule, exhibit, amendment, or
addendum thereto, now or in the future, each party will be deemed to represent to the other that the sign-
ing party has not made any material change to such document from the draft(s) originally provided to the
other party by the signing party, or vice versa, unless the signing party has expressly called such changes to
the other party’s attention in writing (e.g., by “red-lining” the document or by a comment memo or email).
9.5.9 Each individual signing this Agreement on behalf of a party (for example, on be-
half of a corporation or other organization) represents that his or her signature has been
duly authorized by that party. [OTHR-SIGNERS] †
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 96 OF 97
AGREED: <PARTY 1 NAME>, by:
_______________________________Signature
_______________________________Printed name
_______________________________Title
_______________________________Date signed
AGREED: <PARTY 2 NAME>, by:
_______________________________Signature
_______________________________Printed name
_______________________________Title
_______________________________Date signed
<AGREEMENT TITLE> [FROM TATE™ COMPENDIUM VERSION BAILEY 2009-11-12] PAGE 97 OF 97