CIP Terms and Conditions
COLLECTIVE INNOVATION PLATFORM (CIP) TERMS AND CONDITIONS
Last Modified: March 1, 2016
These Collective Innovation Platform Terms and Conditions (these “Terms”) set forth the terms and conditions under which companies may become members of our Collective Innovation Platform (each a “Company”). These Terms are a part of the Collective Innovation Platform Membership Agreement (the “Agreement”) to which each Company must agree, and are hereby incorporated herein, and are made by and between Flex and each Company. Any references made herein to the Agreement shall be interpreted to include these Terms.
1.1 “Commission Period” has the meaning set forth in the Agreement.
1.2 “Customer” has the meaning set forth in the Agreement.
1.3 “Products” has the meaning set forth in the Agreement.
1.4 “Territory” has the meaning set forth in the Agreement.
2. Appointment and Authority of Flex.
2.1 Non-Exclusive Sales Referral Agent. Subject to these Terms, Company hereby appoints Flex as Company’s non-exclusive sales referral agent for the Products in the Territory. Flex’s authority shall be to promote the Products in the Territory in accordance with the Agreement. Flex will not have make any commitments whatsoever on behalf of Company. Company will be entitled to; (i) solicit orders directly from and sell directly to any customer and all distributors within the Territory, and (ii) appoint other sales agents on a non-exclusive basis to sell the Products in the Territory.
2.2 Promotion of Products. Flex shall use commercially reasonable efforts to promote the Products to the Customers in the Territory, however, Company understands and acknowledges that Flex may represent or promote other lines of products and/or services that compete with the Products.
2.3 Independent Contractors. The relationship of Company and Flex established by these Terms is that of independent contractors, and nothing contained in the Agreement shall be construed to (i) give either party the power to direct and control the day-to-day activities of the other, (ii) constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint undertaking, or (iii) allow Flex to create or assume any obligation on behalf of Company for any purpose whatsoever.
3.1 Payment. Company agrees to pay Flex the commissions set forth in Agreement.
3.2 Quarterly Statements. Company shall submit to Flex quarterly statements of the commissions due and payable to Flex under the Agreement, with reference to the specific invoices on which the commissions are being paid.
3.3 Inspection and Audit Rights The Company hereby grants to Flex, and its authorized representatives, access upon reasonable advance notice and during normal business hours to the Company’s premises and/or all pertinent documents and other information, whether stored in tangible or intangible form, including any books, records and accounts, in any way related to the Company’s performance under the Agreement for the purpose of auditing the Company’s compliance with the terms of the Agreement. The Company agrees to cooperate fully with Flex in connection with any such audit or inspection. The Company shall maintain, during the Term, and for a period of three (3) years thereafter, complete and accurate books and records and any other financial information in accordance with generally accepted accounting principles in sufficient detail so as to allow Flex to confirm compliance with the obligations in the Agreement. The Company shall reimburse Flex for all amounts associated with errors discovered during an audit. In addition, the Company shall reimburse Flex for the amount of Flex's reasonable costs and expenses incurred in conducting the audit if the results of such audit indicate that such discrepancy is greater than five percent (5%) of the total amount actually payable by the Company for the period examined. Flex agrees to limit in-person audit to a maximum of once per annum.
4. Product Warranty and Product Ownership.
4.1 Product Warranty. Any warranty for the Products shall run directly from Company to the Customer. Flex shall have no obligation to provide any warranty on the Products to Customers and Flex will be entitled to disclaim any and all Product warranties by Flex to such Customers. Pursuant to Company warranty, the Customer shall return any defective Products directly to Company and Flex shall have no responsibility to accept any returned Products. Company agrees to indemnify and hold Flex harmless from any and all liability to third parties for any claims relating to the use or inability to use the Products.
4.2 Ownership of Products. All right title and interest in any intellectual property rights in the Products shall be retained by Company.
5. Term and Termination.
5.1 Term. The term of the Agreement is set forth in the Agreement (the “Term”), unless earlier terminated as provided below.
5.2 Termination for Convenience. The Agreement may be terminated by either party for any reason or for no reason, by giving the other party sixty (60) days prior written notice.
5.3 Survival of Certain Terms. Those sections and terms which would reasonably be expected to survive shall be the terms and sections which shall survive any termination or expiration of the Agreement. For avoidance of doubt, Company’s commission obligations shall survive the termination of the Agreement. All other rights and obligations of the parties shall cease upon termination of the Agreement.
6. Warranties; Limitation on Liability.
6.1 Power and Authority. Each party represents and warrants that (i) it has the full right, power and authority to enter into the Agreement and to discharge its obligations hereunder, and (ii) it has not entered into any agreement inconsistent with the Agreement.
6.2 No Other Warranties. EXCEPT FOR THE FOREGOING WARRANTIES, THE COMPANY AND FLEX MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
6.3 No Consequential Damages. EXCEPT FOR DAMAGES ARISING OUT OF A BREACH OF SECTION 7 (CONFIDENTIALITY) AND A PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND UNDER ANY CAUSE OR ACTION (INCLUDING NEGLIGENCE), WHETHER OR NOT THE FIRST PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
6.4 Limitation of Damages. EXCEPT FOR DAMAGES ARISING OUT OF A BREACH OF SECTION 7 (CONFIDENTIALITY) AND A PARTY’S INDEMNIFICATION OBLIGATIONS, A PARTY’S total liability for damages in connection with the agreement, whether in an action in contract or tort or any other form of action, SHALL BE THE TOTAL AMOUNT OF COMMISSIONS PAYABLE UNDER THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, THE CAP SET FORTH IN THE PREVIOUS SENTENCE SHALL NOT APPLY TO LIMIT the company’s OBLIGATION for payments for commissions or other amounts owed to flex under this agreement.
7. Confidential Information.
7.1 Definition. All confidential and proprietary information given by one party to the other, and the terms of the Agreement, are confidential (the “Information”). Each party agrees during the Term and thereafter that it will take all steps reasonably necessary to hold the other party’s Information in trust and confidence, will not use Information in any manner or for any purpose other than to perform its obligations under the Agreement, and will not disclose any such Information to any third party without first obtaining the disclosing party’s express written consent. A party may disclose the Information of the other party only to the receiving party’s personnel who have a need to know the Information to perform its obligations under the Agreement and who are bound by a confidentiality agreement at least as restrictive as the terms of this section.
7.2 Exclusions. This obligation of confidentiality will not apply to information that: (1) has been published or is otherwise readily available to the public other than by a breach of the Agreement; (2) has been rightfully received by from a third party without confidential limitations; or (3) has been independently developed by the receiving party’s personnel or agents having no access to the disclosing party’s Information, as indicated by written records. The obligation of confidentiality does not restrict the receiving party from complying with any legal order that compels the receiving party to disclose the Information; however, the receiving party must promptly notify the other party of the order and provide reasonable assistance to allow the disclosing party a reasonable opportunity to seek to protect the confidential information.
7.3 Return of Confidential Information and Restrictions. Each party will return all tangible confidential information to the disclosing party upon request of the disclosing party.
8.1 Amendments and Waivers. Any term of the Agreement may be amended or waived only with the written consent of the parties or their respective permitted successors and assigns. Any amendment or waiver effected in accordance with this section shall be binding upon the parties and their respective successors and assigns.
8.2 Successors and Assigns. The Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assigns and legal representatives. Neither party shall have the right to assign or otherwise transfer its rights or obligations under the Agreement except with the prior written consent of the other party, not to be unreasonably withheld. Notwithstanding the foregoing, Flex may subcontract, delegate or assign some or all of its rights and obligations under the Agreement to an affiliate entity.
8.3 Governing Law and Dispute Resolution. The Agreement shall be governed by and interpreted in accordance with the laws of the State of California, exclusive of conflict or choice-of-law rules, and the parties hereby consent to the personal and exclusive jurisdiction and venue of the California state courts and the federal courts located in Santa Clara County, California. Notwithstanding the foregoing, except with respect to enforcing claims for injunctive or equitable relief, any dispute, claim or controversy arising out of or relating in any way to the Agreement or the interpretation, application, enforcement, breach, termination or validity thereof (including any claim of inducement of the Agreement by fraud and including determination of the scope or applicability of this agreement to arbitrate) or its subject matter (collectively, “ Disputes”) shall be determined by binding arbitration before one arbitrator. The arbitration shall be administered by JAMS conducted in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures as those Rules exist on the effective date of the Agreement, including Rules 16.1 and 16.2 of those Rules. Notwithstanding anything to the contrary in the Agreement, the Federal Arbitration Act shall govern the arbitrability of all Disputes. The arbitration shall be held in Santa Clara County, California, and it shall be conducted in the English language. The parties shall maintain the confidential nature of the arbitration proceeding and any award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. The arbitrator shall have authority to award compensatory damages only and shall not award any punitive, exemplary, or multiple damages and the parties waive any right to recover any such damages. Judgment on any award in arbitration may be entered in any court of competent jurisdiction. Notwithstanding the above, each party shall have recourse to any court of competent jurisdiction to enforce claims for injunctive and other equitable relief.
8.4 Counterparts. The Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
8.5 Titles and Subtitles. The titles and subtitles used in the Agreement are used for convenience only and are not to be considered in construing or interpreting the Agreement.
8.6 Notices. All notices, requests, demands, consents, instructions or other communications to Company or Flex under the Agreement shall be in writing and faxed, mailed, e-mailed or delivered, at their respective address set forth the Agreement (or to such other address for any party as indicated in any written notice given by that party to the other party). All such notices and communications shall be effective (i) when sent by overnight service of recognized standing, on the second business day following the deposit with such service; (ii) when mailed, first class postage prepaid and addressed as aforesaid through the United States Postal Service, upon receipt; (iii) when delivered by hand, upon delivery; and (iv) when faxed or e-mailed, upon confirmation of receipt.
8.7 Severability. If one or more provisions of the Agreement is or are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith, in order to maintain the economic position enjoyed by each party as close as possible to that under the provision rendered unenforceable. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from the Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
8.8 Entire Agreement. The Agreement is the product of both of the parties hereto, and constitutes the entire agreement between such parties pertaining to the subject matter hereof, and merges all prior negotiations and drafts of the parties with regard to the transactions contemplated herein. Any and all other written or oral agreements existing between the parties hereto regarding such transactions are expressly canceled.
8.9 Advice of Legal Counsel. Each party acknowledges and represents that it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of the Agreement. This Agreement shall not be construed against any party by reason of the drafting or preparation thereof.
8.10 Use of Flex Name. The existence and terms of the Agreement are Confidential Information and protected pursuant to the terms herein. Accordingly, Company may not use Flex’s name or identity or any other Confidential Information in any advertising, promotion or other public announcement without the prior express written consent of Flex.
8.11 Changes to these Terms. Flex may, in its sole discretion, modify or update these Terms from time to time, and so Company should review this page periodically. When Flex changes these Terms in a material manner, Flex will update the ‘last modified’ date at the top of this page and notify each Company that material changes have been made to these Terms. If Company does not agree to any of these terms or any future Terms, Company may terminate the Agreement, provided that such termination will not relieve Company of its obligation to pay any commissions.