Cofactr Customer Agreement

Cofactr Customer Agreement

This Cofactr Customer Agreement, effective upon signing of a Customer Order Form, between COFACTR Inc., a Delaware corporation having a principal place of business at 630 Flushing Ave, Brooklyn, NY 11206 ("COFACTR") and Customer ("Customer") agree to the following:

1. Services provided by COFACTR

1.1. Customer is executing this Agreement with COFACTR in order for COFACTR to perform the services described below, as Customer may modify and/or amend the services provided in the future, in accordance with this Agreement:

1.2. PLATFORM ACCESS Customer’s and/or Customer’s users’ access to the COFACTR platform via the web interface. Such access is subject to the platform Terms of Service (TOS) and Privacy Policy. Platform Terms of Service (TOS) and Privacy Policy may be revised from time to time at the sole discretion of COFACTR and will be posted on the COFACTR website. In the event of any conflict between the terms of this Cofactr Customer Agreement and the Platform Terms of Service (TOS) or Privacy Policy, the terms of this Cofactr Customer Agreement shall prevail.

1.3. BUYING AGENT Service as Customer’s buying agent for the purchase of parts, materials, and assemblies (“Parts”). Customer appoints COFACTR as its buying agent with respect to the purchase of certain parts, materials, and assemblies (“Parts”) for which Customer issues a Customer Purchase Order (defined below) to COFACTR pursuant to the terms hereunder.  COFACTR hereby accepts this appointment, and agrees to act in accordance with the terms and conditions set forth in this Agreement.

1.3.1. In general, COFACTR shall perform the following duties and responsibilities upon the submission of a Customer Purchase Order that has been accepted: (a) act as a non-exclusive agent for Customer in connection with the procurement of Parts, including purchasing specific Parts from vendors or suppliers directly, which shall conform to Customer’s instructions and specifications under a Customer Purchase Order; (b) recommend, if necessary or in COFACTR’s judgment, any alternative sources known to COFACTR for the Parts in an effort to reduce cost without compromise to design; (c) if allowed under a Customer Purchase Order, negotiate pricing on Parts on behalf of Customer; and (d) communicate with suppliers of Parts and provide Customer with updated reports regarding shipping dates or other information related to the sale of the Parts

1.3.2. Order Procedure.  Customer shall submit a written purchase order via the COFACTR Platform specifying the quantity of Parts desired and any applicable restrictions on sourcing. Each such Customer purchase order will individually be known as a “Customer Purchase Order” and collectively be known as “Customer Purchase Orders”.

1.3.3. Pricing and Parts Cost

1.3.3.1. Quotes.  The COFACTR platform will display a price quote to Customer for any order submitted to it under a Customer Purchase Order (each, a “Quote"), and such Quote shall set forth the price of the Parts identified in the Quote (or if a choice between suppliers, the prices for the Parts identified in the Quote across those suppliers), and any customs, shipping, taxes or other fees applicable to the Customer Purchase Order and known to COFACTR at the time of Quote. Once Customer accepts the Quote in writing or by placing an order via the Platform, the Quote shall become part of the Customer Purchase Order, and the terms hereof shall apply.  Customer shall be responsible for any and all fees incurred by COFACTR in fulfilling the Customer Purchase Order, including any applicable taxes, whether or not included in the Quote.  Any fees not included in the Quote shall be billed to, and payable by, the Customer within thirty (30) days of issuance of an invoice by COFACTR to Customer for such fees.  All delivery times set forth in any Quote are estimates, and any failure to meet the delivery estimate in any Quote shall not give rise to a right to cancellation of any Customer Purchase Order by Customer.

1.3.3.2. Price Changes. In the event of any change in the pricing or other fees associated with the purchase of the Parts between the time of Customer accepts the Quote and the time that COFACTR fulfills the Customer Purchase Order, the Customer will be so notified, and will have the option to cancel the Customer Purchase Order for a full refund, or pay the difference between the original pricing under the Quote and the new price for the Parts.

1.3.3.3. Customer Purchase Order Changes or Cancellation.  Customer may, with written notice to COFACTR by Customer, propose to make changes or additions to any Customer Purchase Order that has been accepted by COFACTR (each a “Purchase Order Amendment”), and COFACTR shall have the right, in its sole discretion, to accept or reject any Purchase Order Amendment.  If any Purchase Order Amendment that has been accepted by COFACTR causes an increase or decrease in the cost of the Parts, the time required to deliver the Parts, or any other matter related to the Parts, the Customer Purchase Order will be modified to reflect such changes.   Customer may, with written notice to COFACTR by Customer, cancel any Customer Purchase Order, and upon such cancellation shall owe COFACTR any costs incurred by COFACTR (including any COFACTR surcharges) through the date of cancellation or as a result of the cancellation of the Customer Purchase Order.  

1.3.4. Parts Warranty.  If allowable, COFACTR shall pass through to Customer any standard published warranty of supplier and/or manufacturer on any Parts purchased by COFACTR on behalf of Customer. ALL OTHER WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING FROM STATUTE, COMMON LAW, CUSTOM OR OTHERWISE, ARE EXPRESSLY DISCLAIMED.  Moreover, COFACTR does not represent or warrant any independent verification of information about suppliers of Parts found on COFACTR’s Platform, and makes no representations about the quality, source, conformity or suitability of such Parts for Customer’s purposes.  

1.3.5. Return of Parts. For all purchase of Parts under any Customer Purchase Order, any non-receipt or return of the Parts thereunder shall be subject to the supplier’s policy only regarding non-receipt and/or returns of Parts, and cannot be guaranteed by COFACTR.  If Customer informs COFACTR of its intent to seek a refunds and/or return any or all of the Parts purchased under a Customer Purchase Order for non-conformity or otherwise (including the quantity to be returned and any other details that may be applicable thereto), COFACTR shall cooperate with Customer to request a return goods authorization and/or refund from the supplier of the Parts.  Customer shall be responsible for the payment of any shipping costs related to returning the Parts to supplier, and any handling and other reasonable fees associated with such returns incurred by COFACTR; provided, however, in the event COFACTR secures all or a portion of a refund associated with the Parts from the supplier, it shall pass such refund on to the Customer, less any expenses of COFACTR associated with obtaining such refund and any applicable service fees related to facilitating the return or refund.

1.4. IMPORTER OF RECORD SERVICES.  Unless otherwise specified in a Customer Purchase Order, COFACTR shall act as Importer of Record as defined under the U.S. Customs laws and regulations and shall manage importation of Parts, including but not limited to the management and provision of associated documentation and filing and clearance of the Parts through the local customs authority. As Importer of Record, COFACTR may in its sole discretion retain duly licensed and/or registered freight forwarders and customs house brokers to manage international transportation and customs clearance of Parts. Client expressly authorizes COFACTR to act as or to appoint an Importer of Record, import agent and/or limited fiscal representative to act on behalf of the Customer and to perform the import and customs related procedures. COFACTR warrants and represents that in the case of an appointment of an Importer of Record, it will notify Customer of such appointment and warrants that it has done its due diligence to ensure such entity shall provide the agreed services in accordance with the terms and conditions of this Agreement. The Importer of Record shall be liable for all in-country statutory obligations to the customs and tax authorities, including duties, fees and other costs imposed by customs and tax authorities, of whatsoever nature. As such, all tax related liabilities, re-assessments by customs, rebates, or post clearance amendments will be for the Importer of Record’s account unless such obligations arise out of a misrepresentation by the Customer.  Any fees, costs and expenses incurred by COFACTR by or on behalf of Customer as Importer of Record shall be the responsibility of the Customer, and shall be due and payable as provided in the Quote or as otherwise set forth in Section 4 hereof. Fees associated with Importer of Record Services will be included in applicable Quotes and are subject to revision from time to time at COFACTR’s sole discretion.

1.5. HANDLING, STORAGE AND WAREHOUSING Storage/handling of Parts on behalf of Customer, which unless otherwise set forth in a Statement of Work will be subject to COFACTR’s standard Rate Card provided to Customer alongside this Agreement or as otherwise specified within the COFACTR platform, and subject to revision from time to time at COFACTR’s sole discretion.

1.5.1. Storage Services and Location.  Parts may be delivered to and stored by COFACTR on behalf of Customer at COFACTR’s location at 630 Flushing Ave, Brooklyn, NY 11206, or at such other locations as COFACTR may select.  COFACTR reserves the right to accept or reject requests to store Parts in its sole discretion.  If Customer elects storage services through any means including but not limited to actions taken via the COFACTR platform, written instruction, or shipment of Parts to COFACTR, the Parts shall be delivered for storage properly marked and adequately packaged for storage, handling, and transport, and unless otherwise agreed to by COFACTR and Customer, COFACTR will store Parts only in the packages in which they were originally received or suitable equivalent.

1.5.2. Handling.  Parts stored by COFACTR will be unloaded and/or moved by COFACTR employees, contractors or authorized agents, and Customer authorizes such unloading and/or movement. COFACTR shall issue a warehouse receipt to Customer each time Parts are taken into storage on behalf of Customer in the form of a digital record in the COFACTR platform. Fees associated with the receipt and, where possible, documentation and counting of Customer Parts will be subject to charges as indicated in the attached or then-current COFACTR Rate Card.

1.5.3. The storage and/or warehousing of Parts hereunder shall not change the ownership of the Parts as described herein, and Customer acknowledges that such Parts so stored are not owned by COFACTR.

1.5.4. Storage Fees. Customer agrees to pay COFACTR a monthly storage fee for the Parts or storage space assigned by COFACTR to Customer subject to COFACTR’s calculation of Customer’s usage of storage space and related services.

1.5.5. Special Services.  Any special services requested by Customer that COFACTR may agree to provide, including but not limited to compiling inventory statements, reporting marked weights, serial numbers, or other data from packages, or the physical checking of Parts, will be subject to additional charges to be determined in COFACTR’s sole discretion.

1.5.6. Additional Handling Services. Customer may request that COFACTR provide Additional Handling Services including, but not limited to modifications to Parts such as dividing packages, combining packages, and repackaging of parts. Such services will be subject to additional charges as indicated in the COFACTR platform, attached or then-current COFACTR Rate Card, or as otherwise determined in COFACTR’s sole discretion.

1.5.7. Shipping Services Customer may request that COFACTR provide packaging and shipping services for parts. Such services will be subject to additional charges as indicated in the COFACTR platform, attached or then-current COFACTR Rate Card, or as otherwise determined in COFACTR’s sole discretion. Additionally, all shipping carrier or courier costs associated with Customer’s requested shipments shall be reimbursed to COFACTR by Customer.

1.5.8. Environmental Laws; Hazardous Materials.  COFACTR does not certify, represent or warrant that any Parts: (i) are and shall be in compliance with any laws, including Environmental Laws, and (ii) are not considered Hazardous Materials.  If applicable, COFACTR shall use commercially reasonable efforts to obtain evidence from any Parts supplier under a Customer Purchase Order showing compliance with any Environmental Laws, but shall not be required to do so.  Additional fees for the storage and/or handling of Hazardous Materials by COFACTR may apply.   “Environmental Laws” shall be defined collectively as laws pertaining to the environment, and the toxic or hazardous nature of Parts or their constituents; including but not limited to the Toxic Substance Control Act, the Occupational Safety and Health Act, the Hazard Communication Standard, the Federal Hazardous Substances Act, California Proposition 65, REACH, Restriction of Hazardous Substances Directive and any other environmental, toxic or hazardous product compliance obligation.  “Hazardous Material(s)” means any hazardous, dangerous, toxic or harmful substance, material or waste which is or becomes regulated by any local or state governmental authority, or the United States government, due to its potential harm to the health, safety or welfare of humans or the environment.  

1.6. PART INSPECTION SERVICES Customer may request that COFACTR provide Part Inspection Services including, but not limited to, visual imaging of Parts, X-Ray imaging of Parts, chemical analysis of Parts, electrical testing of Parts, and coordination of 3rd party providers of related inspection services (“Part Inspection Services”). Part Inspection Services may be specified in a Customer Purchase Order, requested using the COFACTR Platform, or otherwise authorized in writing. Such services will be subject to additional charges as indicated in the COFACTR platform, Customer Purchase Order, attached or then-current COFACTR Rate Card, or as otherwise determined in COFACTR’s sole discretion.

1.6.1. Customer acknowledges that Part Inspection Services may not find all possible defects or non-conformities, do not result in a definitive determination as to the condition, authenticity, correctness, or suitability for manufacturing of Parts, and bear an inherent risk of damage to Parts for which COFACTR is not liable.

1.6.2. Part Inspection Services may include analysis and/or findings by COFACTR but such analysis is made in the best judgement of the individual rendering Part Inspection Services and may have errors, inaccuracies, or be incomplete.

1.6.3. Part Inspection Services and related analysis may be based on information and/or Parts provided by Customer or a 3rd party including, but not limited to, imaging or samples of “known-good” Parts and written documentation. Customer acknowledges that COFACTR cannot be held responsible for any inaccuracies or incompleteness in information and/or Parts provided by Customer or a 3rd party for use in providing Part Inspection Services.

1.6.4. Upon written request, COFACTR will provide Customer with all records and documentation related to Part Inspection Services.

1.7. PURCHASE PROTECTION SERVICES When specified in a Customer Purchase Order accepted by COFACTR, COFACTR will provide certain guarantees related to the Parts specified in the Customer Purchase Order as covered by Purchase Protection (“Purchase Protected Parts”).

1.7.1. Purchase Protection Warranty Any Purchase Protected Parts purchased by COFACTR as Customer’s buying agent shall be in new condition, correct, authentic, and suitable for manufacturing, unless otherwise specified. Upon its receipt of the Parts, COFACTR will provide the Part Inspection Services specified in the Customer Purchase Order and, if COFACTR determines that Purchase Protected Parts are in other than new condition, incorrect, inauthentic, or unsuitable for manufacturing, COFACTR shall, as it determines and at its expense:

1.7.1.1. Return Parts to supplier and refund customer for any amounts paid to COFACTR by Customer for the Purchase Protected Parts inclusive of any COFACTR fees, shipping charges, or other costs related exclusively to the purchase of the Purchase Protected Parts.

1.7.1.2. Replace Purchase Protected Parts with the same quantity of the same Part in new condition, correct, authentic, and suitable for manufacturing.

1.7.1.3. Provide, at no cost to Customer, any Special Services or Additional Handling Services required to cure the unsuitability of Purchase Protected Parts such that they become suitable for manufacturing, to the extent that it is possible and practical to do so.

1.8. Collectively, any services selected above, or hereinafter selected by the Customer, shall be known as the “Services”, and will be subject to the terms and conditions of this Agreement.

2. Scope of Agreement. The terms and conditions contained in this Agreement shall be applicable to all Statements of Works issued hereunder, and shall supplement, but not supersede, all ancillary agreements executed in connection with the Services provided hereunder, (collectively, the “Ancillary Agreements”).  As used herein, this “Agreement” shall mean this Customer Usage Agreement, any Statements of Work and Ancillary Agreements, all as applicable. In the event of any conflict between the terms of this Cofactr Customer Agreement and the Platform Terms of Service (TOS) or Privacy Policy, the terms of this Cofactr Customer Agreement shall prevail.

3. Independent Contractor Status. COFACTR shall act at all times as an independent contractor and shall be responsible for any and all social security, unemployment, workers’ compensation and other withholding taxes for any and all of its employees. As an independent contractor, COFACTR shall have no authority, express or implied, to commit, obligate or bind Customer, in any manner whatsoever, except as specifically approved from time to time in writing by Customer in any Statement of Work or Ancillary Agreement or via actions taken via the Cofactr platform. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties. COFACTR may use subcontractors to perform Services under this Agreement.

4. Fees.

4.1. If applicable, Customer agrees to make a One-Time Implementation Fee payment to COFACTR in the amount listed on the attached Cofactr Order Form, payable no later than 30 days after the Effective Date.

4.2. Customer agrees to make Platform Access Fee payments to COFACTR in the amount and on the schedule listed on the attached Cofactr Order Form, payable no later than the last first of each applicable term unless otherwise agreed to in writing.

4.3. Customer agrees to pay COFACTR the fees identified in any Statement of Work, or as set forth in any Ancillary Agreement. Unless otherwise specifically set forth in any Statement of Work or Ancillary Agreement, Customer agrees to pay all fees within thirty (30) days of receipt of a COFACTR invoice.  Any late payments shall incur late fees at the rate of two percent (2%) per month or the maximum rate permitted by law, whichever is less (“Late Payment Fee”). Customer agrees to pay all late fees, and if applicable, any and all costs, fees and expenses incurred by COFACTR for collection of any amounts so owed. Customer will reimburse COFACTR for pre-approved expenses incurred by COFACTR in the performance of any Services under this Agreement.    

4.4. In the event that any Late Payment Fee is owed, COFACTR may, in COFACTR’s sole discretion:  (1) charge any amounts that may be owed to COFACTR hereunder, including any Late Payment Fees, to any credit card on file for Customer with COFACTR, if applicable; (2) seize any Customer-owned Parts or other items in its possession owned by Customer as payment towards any amounts owed to it, including but not limited to Late Payment Fees; or (3) withhold, offset, recoup or debit any amounts that become due and owing by COFACTR to Customer against any amounts owed to it, including but not limited to Late Payment Fees.

4.5. Payment of all fees may be made by cash, check, or wire transfer of immediately available funds to COFACTR or will be charged by COFACTR to Customer’s credit card on file, if applicable. Unless otherwise specifically agreed to by Customer and COFACTR, Customer shall be responsible for all sales, value-added, similar taxes, carrier and government and/or regulatory fees, and surcharges which COFACTR is at any time required to pay or collect in connection with the sale, licensing or furnishing of Services under this Agreement, any Statement of Work or Ancillary Agreement.

5. Term and Termination.  

5.1. The term of this Agreement shall begin on the Effective Date, and shall continue for the term specified on the attached Order Form, unless terminated as provided herein. Subject to the other provisions hereof, this Agreement shall automatically renew for successive Renewal Terms as specified on the attached Order Form, unless either party provides the other party with written notice of its intent not to renew at least ten (10) days prior to the end of the initial term or any renewal term.  The initial term and any renewal term are collectively known as the “Term.”  The termination of any Statement of Work or Ancillary Agreement will not, by its terms, terminate this Agreement, which shall only be terminated by explicit termination thereof by one of the parties hereto in accordance with this Section 5.

5.2. Unless otherwise specifically set forth in a Statement of Work or Ancillary Agreement, COFACTR may terminate this Agreement, or any Statement of Work or Ancillary Agreement, immediately if Customer fails to pay COFACTR any amount due within the time period set forth therein (or if no time period set forth therein, within thirty (30) days of Customer’s receipt of the original invoice for that amount).  

5.3. Upon termination of this Agreement, or any Statement of Work or Ancillary Agreement, Customer shall pay all fees and expenses incurred through the date of termination. Additional fees may apply as a result of any termination, as set forth in any Ancillary Agreement or Statement of Work, including, but not limited to, fees related to services required to return or dispose of Customer Parts stored in COFACTR facilities.

6. Limitations.

6.1. Disclaimer of Warranty.   ALL SERVICES WILL BE PERFORMED IN A PROFESSIONAL MANNER AND IN ACCORDANCE WITH ANY APPLICABLE SPECIFICATIONS SET FORTH IN ANY APPLICABLE STATEMENT OF WORK OR ANCILLARY AGREEMENT. EXCEPT FOR THE WARRANTY DESCRIBED IN THE IMMEDIATELY PRECEDING SENTENCE, ANY SERVICES AND DELIVERABLES ARE FURNISHED BY COFACTR AND ACCEPTED BY CUSTOMER “AS IS”. COFACTR DOES NOT WARRANT THAT THE SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED OR ERROR FREE. COFACTR SPECIFICALLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF OR AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE INFORMATION, INFRINGEMENT, ACCURACY, COMPATIBILITY, INTEGRATION, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  

6.2. Limitation of Remedies. UNLESS OTHERWISE SPECIFICALLY SET FORTH IN A STATEMENT OF WORK OR ANCILLARY AGREEMENT, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THIS AGREEMENT SHALL BE THAT COFACTR WILL ENDEAVOR TO CORRECT, WITHIN A REASONABLE TIME, ANY TIMELY REPORTED BREACH. IF COFACTR SHALL FAIL OR BE UNABLE FOR ANY REASON TO CORRECT ANY BREACH, UNLESS SPECIFICALLY SET FORTH OTHERWISE, COFACTR’S TOTAL LIABILITY SHALL BE ABSOLUTELY LIMITED TO THE AMOUNT PAID BY CUSTOMER TO COFACTR FOR THE SPECIFICALLY AFFECTED SERVICES UNDER THIS AGREEMENT, ANY STATEMENT OF WORK OR ANY ANCILLARY AGREEMENT.

6.3. Limitation of Liability. IN NO EVENT WILL EITHER COFACTR OR CUSTOMER BE LIABLE TO THE OTHER OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, OR OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SERVICE FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF THE RELEVANT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

6.4. IN NO EVENT SHALL COFACTR 'S LIABILITY UNDER THIS AGREEMENT (WHETHER ASSERTED AS A TORT CLAIM OR CONTRACT CLAIM) EXCEED THE LESSER OF THE AMOUNTS PAID TO COFACTR HEREUNDER BY CUSTOMER OR THE AMOUNTS PAID TO COFACTR BY CUSTOMER FOR SERVICES RENDERED BY COFACTR IN THE TWELVE MONTHS’ PRIOR TO THE INCIDENT GIVING RISE TO THE CLAIM.  IN NO EVENT WILL COFACTR BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PARTS BY CUSTOMER, UNLESS OTHERWISE AGREED.  

7. Force Majeure. Neither Party shall be liable for any failure to perform as required by this Agreement, to the extent such failure to perform is due to circumstances reasonably beyond either Party’s control and not to be expected in the normal course of business, such as labor disturbances or labor disputes of any kind, failure of any governmental approval required for full performance, civil disorders, acts of aggression, war, acts of terrorism, acts of God, power failures, explosions, pandemics, failure of utilities, or other such similar occurrences.  Each Party promptly shall notify the other if any of the foregoing will delay such notifying Party’s performance hereunder.  Unless otherwise agreed in a Statement of Work or Ancillary Agreement, if any such event continues for more than ninety (90) days, then the Party not in breach of contract as a result of the event, or either Party if both are not fully performing the Agreement as a result of the event, may terminate this agreement upon written notice to the other.

8. Limitations as to Subcontractors.  The protections of the Disclaimers, Limitations of Liability, and Limitation of Remedies that are afforded to COFACTR under this Agreement will also apply to and protect any subcontractors of COFACTR as third-party beneficiaries of those provisions.  

9. Intellectual Property  

9.1. The parties agree that all rights to any new use, inventions, improvements, and/or discoveries derived by COFACTR, which may be discovered by COFACTR or its agents as a result of any of the Services provided hereunder shall be the sole and exclusive property of COFACTR.  Notwithstanding the foregoing, nothing in this Agreement shall convey, transfer or assign any right, title or interest in either party's Proprietary Materials to the other party.  The parties shall cooperate to take such further actions, including execution and delivery of instruments of conveyance, as may be appropriate to give full and proper effect to the rights hereunder. The methodologies, software, tools and other products or intellectual property of COFACTR’s subcontractors, are not governed by this Agreement.  

9.2. "Proprietary Materials" means all patents, copyrights, design rights, trademarks, service marks, trade secrets and other worldwide intellectual property or proprietary rights owned by a party during the Term, and the software, schematics, diagrams, information, and other tangible embodiments, if any, relating thereto. The Services, including any developments, products, software, know-how, documentations, and modifications, customizations or derivative works thereto are owned exclusively by COFACTR and are protected by intellectual property laws.

10. Confidential Information

10.1. Confidential Information.  Each of COFACTR and Customer acknowledges that during the course of the Services, certain employees, officers, directors, agents and/or independent contractors (collectively, the “Recipients”) may become informed of, and have access to, confidential information and other valuable and confidential information of the other party , its parents, subsidiaries, affiliates, independent contractors and clients (collectively, the “Discloser”). COFACTR, as Recipient, agrees that Customer Confidential Information includes the non-public information relating to Customer’s business plans, trade secrets, know how, computer programs/operations plans, specifications and the identity of clients and Customer Data.  Customer, as Recipient, agrees that COFACTR Confidential Information includes the Platform, and any other non-public information relating to COFACTR’s business plans, trade secrets, know how, computer programs/operations plans, specifications and the identity of clients, customers, or employees.  Recipient agrees that the Discloser’s Confidential Information is at all times the exclusive property of the Discloser and that it is to be held by the Recipients in trust and solely for the Recipient’s ability to perform its obligations to the Discloser under this Agreement, any Statement of Work or Ancillary Agreement.  Recipient further agrees that, unless otherwise agreed in writing, it shall not at any time during or subsequent to the Term of this Agreement use, reveal, report, publish, transfer or otherwise disclose to any person or entity any of the Discloser’s Confidential Information, except to persons whom Discloser agrees in writing have a need for this information for purposes that allow the Recipient to perform its obligations to the Discloser under this Agreement. This provision does not prohibit the Recipient from disclosing information which legally is or becomes public knowledge absent any violation of any obligations of confidentiality by any Recipient.  Notwithstanding the preceding, the limitations set forth in this Section shall not apply to (i) information which is currently known by any Recipient or was within any Recipient’s possession prior to its being furnished to such Recipient pursuant hereto, or (ii) was independently developed by Recipient without use of or access to the Discloser’s Confidential Information or (iii) was lawfully disclosed to Recipient without any limitation on use or disclosure of the information by a third party; or (iv) is required by law to be disclosed by Recipient.  If the Recipient claims to disclose information because of a legal obligation, Recipient shall make best efforts to inform the Discloser regarding the source of that obligation in time to allow the Discloser to take legal steps necessary to attempt to limit, protect or prevent the disclosure.

10.2. Data Privacy.  All data, other information, and writings provided to COFACTR by and/or on behalf of Customer, irrespective of whether provided in paper, oral or electronic form (including, but not limited to original case report forms, dictionaries and data entry copies of case report forms) shall be owned by Customer.  As utilized in this Agreement, the term “electronic form” includes, but is not limited to, computer disks and tapes, CD-ROM disks, optical disks, electronic mail, upload to Cofactr platform, audio tapes and/or other digital transcript or pdf form, or its substantial equivalent.

10.2.1. Unless otherwise agreed by the Parties in writing, Customer shall not upload, post, or transmit any content or information which is in the nature of “personal data;” such data includes but is not limited to social security number or other government identification, information pertaining to race or ethnic origin, trade union membership or physical or mental health or condition, sex life, or criminal history of individuals.  COFACTR shall not be liable for any loss, theft, destruction, or use by a third party of any sensitive personal data provided to COFACTR without COFACTR’s written agreement.  Notwithstanding the foregoing, COFACTR agrees that it shall treat all “personal data” as Confidential Information of the Customer, and in accordance with COFACTR’s privacy policy, which may be updated at any time.  

10.2.2. If COFACTR agrees to collect “personal data” of any kind, COFACTR shall collect or access such “personal data” only to the extent that is necessary for COFACTR to perform the Services or to fulfill any legal requirements.  “Personal data” in the possession or under the control of COFACTR shall not be retained by COFACTR for longer than is necessary for the purpose or purposes for which it was collected.  Notwithstanding the foregoing, Customer shall only provide “personal data” to COFACTR that it has proper consent and/or authorization to provide.

10.3. Promotion.  COFACTR may publicize that CUSTOMER is a customer of COFACTR in such manner as it deems appropriate by issuing a public relations announcement and through other communication channels including COFACTR’s website, digital communications, social media, promotional and advertising materials, events, retail displays, and in print, radio television, or digital advertisements. COFACTR may print CUSTOMER’s corporate name, brand or proprietary name, marks, and logos and the URL for CUSTOMER’s website and any other information identifying CUSTOMER on any advertising or promotional materials in any of the media described above.

11. General Provisions.

11.1. Indemnification; Limitation of Liability

11.1.1. Unless otherwise agreed in a Statement of Work or Ancillary Agreement, which shall control, and subject to the provisions herein, COFACTR agrees to defend, indemnify, and hold harmless Customer and its respective employees and agents (collectively, the “Customer Indemnities”) from and against any claims, proceedings, or investigations arising directly out of or in connection with COFACTR’s breach of its obligations under this Agreement, or any claims resulting directly from the gross negligence or willful misconduct of COFACTR, and agrees to bear all costs and expenses, including without limitation, reasonable attorney’s fees incurred in connection with the defense or settlement of any such claim, proceeding or investigation as such costs and expenses are incurred in advance of judgment, provided however, that COFACTR shall not be obligated under this Section 9.1 to the extent that such loss arises out of Customer’s breach of its obligations under this Agreement or the negligence or willful misconduct of Customer or the Customer Indemnities; and so long as COFACTR is promptly notified in writing of any complaint, claim or injury relating to any loss subject to this indemnification; and COFACTR has the right to select defense counsel and to direct the defense or settlement of any such claim or suit.

11.1.2. Unless otherwise agreed in a Statement of Work or Ancillary Agreement, which shall control, and subject to the provisions herein, Customer agrees to defend, indemnify, and hold harmless COFACTR and its respective employees and agents (collectively, the “COFACTR Indemnities”) from and against any claims, proceedings, or investigations arising directly out of or in connection with Customer’s breach of its obligations under this Agreement, or any claims resulting directly from the gross negligence or willful misconduct of Customer, and agrees to bear all costs and expenses, including without limitation, reasonable attorney’s fees incurred in connection with the defense or settlement of any such claim, proceeding or investigation as such costs and expenses are incurred in advance of judgment, provided however, that Customer shall not be obligated under this Section 9.1 to the extent that such loss arises out of COFACTR’s breach of its obligations under this Agreement or the negligence or willful misconduct of COFACTR or the COFACTR Indemnities; and so long as Customer is promptly notified in writing of any complaint, claim or injury relating to any loss subject to this indemnification; and Customer has the right to select defense counsel and to direct the defense or settlement of any such claim or suit.

11.1.3. Customer acknowledges that COFACTR is a buying agent only, and as such, COFACTR shall only be liable with respect to any environmental claim or any liability arising from any claim based upon damage or injury to the Customer’s property or the environment for the buying agent services it provides hereunder, to the extent that such liabilities arise from any act or omission constituting the gross negligence of COFACTR or COFACTR’s employees.  Except as otherwise set forth herein, Customer hereby indemnifies, holds harmless, and at COFACTR’s request, agrees to defend COFACTR, its officers, directors, agents and employees, against all claims, liabilities, damages, losses and expenses, including attorneys’ fees and cost of suit arising out of or in any way connected with the Parts provided under this Agreement, including, without limitation, (i) any claim based on the death or bodily injury to any person, destruction or damage to property, or contamination of the environment and any associated clean up costs, (ii) any claim based on the negligence, omissions or willful misconduct of Customer or any of Customer’s employees, agents, affiliates or representatives, , and (iii) any claim by a third party alleging that the Parts provided under this Agreement, infringe a patent, copyright, trademark, trade secret or other proprietary right of a third party, whether such are provided alone or in combination with other products or processes.

11.1.4. The indemnified Party in any proceeding hereunder shall cooperate fully with the indemnifying Party in defending against indemnifiable losses, including, without limitation, promptly notifying the indemnifying Party of such indemnifiable losses, attending and giving depositions, participating in trials, hearing, or similar proceedings and signing all documents.  The indemnified Party shall make no compromise or settlement without the prior written consent of the indemnifying Party.

11.2. TITLE; RISK OF LOSS.   The risk of loss to Parts, whether in transit, in storage, or wherever located after shipment from suppliers of such Parts has commenced, shall be Customer’s sole responsibility.  Customer, at its own expense, should procure insurance coverage for Parts as Customer deems appropriate. Title to any Parts ordered by Customer through a Customer Purchase Order shall transfer to Customer as indicated by the supplier of the Parts.  Customer acknowledges that COFACTR is a buying agent under all Customer Purchase Orders only, and unless otherwise specified herein or by applicable law, shall not take title of the Parts at any time.

11.3. Notices. Any notices to be given hereunder by either party to the other may be affected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in the introductory paragraph of this Agreement. Each party may change such address by written notice in accordance with this paragraph. Notices delivered personally will be deemed communicated as of actual receipt. Mailed notices will be deemed communicated as of three (3) days after mailing.

11.4. Entire Agreement.  This Agreement supersedes any and all previous agreements, either oral or written, between COFACTR and Customer with respect to the rendering of services by COFACTR and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. This Agreement may only be modified by a writing executed by both parties.

11.5. Non-Waiver. The failure by either party at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. The waiver of any default by either party shall not be deemed a continuing waiver but shall apply solely to the instance to which such waiver is directed.

11.6. Execution. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original and all of which counterparts, taken together, shall constitute one and the same instrument. Counterparts may be delivered via facsimile, digital signature, electronic mail (including pdf) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

11.7. Partial Invalidity. Every provision of this Agreement shall be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision shall be deemed severed from this Agreement, and all other provisions shall remain in full force and effect.

11.8. Governing Law. This Agreement shall in all respects be governed by and interpreted, construed and enforced in accordance with the laws of the United States of America and the State of Delaware. Any action between the parties will be venue in a state or federal court situated within the State of New York, and Customer irrevocably submits itself to the personal jurisdiction of such courts for such purpose.

11.9. Dispute Resolution.  Notwithstanding the foregoing, and unless otherwise provided herein or in a Statement of Work or Ancillary Agreement, in the event of any controversy or claim arising out of, relating to or in connection with any provision of this Agreement, or the rights or obligations of the Parties hereunder, the Parties shall try to settle their differences amicably between themselves by referring the disputed matter to an authorized representative of each Party that can make decisions on behalf of the Party, for discussion and resolution.  Either Party may initiate such informal dispute resolution by sending written notice of the dispute to the other Party, and within ten (10) days of such notice the other Party, shall meet for attempted resolution by good faith negotiations.  If such personnel are unable to resolve such dispute within thirty (30) days of initiating such negotiations, each Party may thereafter pursue any and all rights and remedies it may have at law or equity.  If mutually agreeable, the Parties may explore alternative forms of dispute resolution, such as mediation and/or arbitration.  Notwithstanding any other provision of this Section, either Party may seek a temporary restraining order or injunction against the other Party in the event of a good faith breach of any confidentiality obligation hereunder, or to prevent a Party’s wrongful use of any intellectual property hereunder without first engaging in the foregoing dispute resolution procedures.

11.10. Assignment. Neither party may assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of the other, except that COFACTR may assign, delegate and/or otherwise transfer this Agreement or its rights and obligations hereunder to any person or entity which purchases or otherwise succeeds to substantially all of the assets of COFACTR.