A Client of Next Mile IoT LLC (“Next Mile, “Next Mile IoT”) binds itself to these Terms and Conditions when it executes a Statement of Work authorizing Next Mile to provide Services to Client. Client expressly agrees to these Terms and Conditions as set forth here at the URL https://www.nextmilellc.com/terms.
This agreement’s Effective Date will be the date of the applicable Statement of Work. Throughout this and subsequent agreements, Next Mile and client may be referred to individually as a Party and collectively as Parties.
In consideration of the mutual covenants and promises declared herein, the receipt and sufficiency of which are hereby mutually acknowledged, the Parties agree to the following:
“Affiliate” means any person or entity controlled by, controlling, or under control of a Party. “Control” means the legal, beneficial, or equitable ownership, directly or indirectly, of more than 50% of the aggregate voting equity interests in the affiliated entity.
“Agreement” means the total incorporation of:
- These Terms and Conditions
- Any Statement(s) of Work
- Any Change Order(s)
- Any Separate NDA executed by the Parties prior to the execution of this agreement, existing now or hereafter
1.3. Change Order.
A “Change Order” is a written, documented request and alteration to a Statement of Work. A Change Order memorializes the schedule and cost impacts of a given request. Change Orders must be approved by Client prior to the execution of the work described.
1.4. Client Deliverables or Deliverables.
“Client Deliverables” or “Deliverables” means anything architected, customized, designed, documented, or planned for or otherwise delivered to a Client by Next Mile as articulated in a Statement of Work or Change Order.
1.5. Confidential Information.
“Confidential Information” means all material, non-public, business-related information, written or oral, that is disclosed or made available to the receiving party, directly or indirectly, through any means of communication or observation that has been declared confidential. Confidential Information includes any:
1.5.1. Process Information.
“Process Information” includes technical and non-technical information such as proprietary know-how, techniques, process, engineering standards, and trade secrets.
1.5.2. Proprietary Documentation.
“Proprietary Documentation” means sketches, schematics, documentation, methodological descriptions, models, and inventions.
1.5.3. Intellectual Property.
“Intellectual Property” includes any work or invention that is the result of creativity such as algorithms, programs, applications, source code, tools, copyright, and patent information.
1.5.4. Future Plans.
“Future Plans” includes strategic objectives, information concerning current, future, and proposed Client Deliverables, research, experimental work, development, design details and specifications.
1.5.5. Sensitive Information.
“Sensitive Information” includes sales data, marketing data, financial information, procurement processes, purchasing, manufacturing, customer lists, forecasts, merchandising plans, marketing plans, sale strategies, rates, estimates, proposals, statements of work, requirements, and communications between the Parties.
1.6. Consulting Tools.
“Consulting Tools” are Next Mile Intellectual Property created prior to, outside of, or independent of this agreement that may be used in, enhanced, or developed in the performance of Services or delivered to Client as part of an Agreement. Consulting Tools encompass material of a general abstract character such as: methodologies, delivery strategies, project tactics, approaches, practices, research, background materials, training materials, templates, analytical models, inventions, solutions and descriptions thereof, know-how, and ideas.
1.7. Disclosing Party.
“Disclosing Party” is the Party to this Agreement that discloses Confidential Information to Receiving Party.
“Expenses” includes all costs related to servicing Client excluding Next Mile professional services fees.
1.8.1. Client-authorized Expenses.
“Client-authorized Expenses” include travel, licenses, hardware, software, shipping, subcontracting, and taxes associated with the foregoing. Client-authorized Expenses require Client authorization prior to their incursion by Next Mile and will be passed through to Client via a Next Mile invoice.
1.8.2. Incidental Expenses.
“Incidental Expenses” include third-party fees, such as those resulting from credit card payments, wire transfers, or bounced checks of Client. Incidental Expenses do not require Client approval and will be billed to Client via a Next Mile invoice.
In this Agreement, the terms “including,” “include”, or “includes” means “including without limitation,” “include without limitation”, or “includes without limitation,” respectively. Words other than those so defined employ their plain English meaning. Specialized, industry-specific terms of art such as those used in the hardware, software, and consulting industries will be interpreted in accordance with their industry norms and standards.
1.10. Receiving Party.
“Receiving Party” is the Party to this Agreement to whom Confidential Information is disclosed by Disclosing Party.
“Services” means all services performed by Next Mile pursuant to this Agreement.
1.12. Statement of Work.
A “Statement of Work” document describes the services to be performed and the functions and responsibilities of Next Mile pursuant to a specific project or request of Client. Work authorizations, proposals, estimates, scopes of work, letters of intent and similar documents shall each be treated as a “Statement of Work” unless or until superseded by a subsequent Statement of Work
2.1. Work by Next Mile.
Subject to the terms of payment set forth herein, Next Mile agrees to provide Services and/or deliver Deliverables for Client as described in this Agreement. All Services performed and Deliverables provided by Next Mile to Client under this Agreement will be performed under a Statement of Work except as classified by section Services Not Covered by Statement of Work below.
2.2. Statement of Work Veracity.
Each Statement of Work describes the Services to be performed. Client shall verify that the Statement(s) of Work provides a complete and unambiguous description of the requirements and specifications that it requires in the Services and/or Deliverables prior to executing it, and agrees that it wants Next Mile to perform the described Services.
2.3. Billing Methods.
Services may be billed using one of the following methods or such other method as the Parties may agree in the Statement of Work:
2.3.1. Fixed Bid.
Services performed for a fixed price are designated “Fixed Bid” projects. Fixed Bid projects are limited to the explicitly described Services and Deliverables outlined in an applicable Statement of Work. If Client requests and agrees to additional services, the Fixed Bid will be adjusted in a Change Order. Fixed Bids do not include Expenses incurred by Next Mile, and Client is responsible for all Expenses incurred.
2.3.2. Time and Materials.
Services performed at an hourly rate are considered “Time and Materials” projects. Time and Materials project efforts are based on an approximate number of hours estimated expertly and in good faith. Client will be billed for every hour worked in half-hour increments at rates identified in each Statement of Work. Client is responsible for all Expenses incurred.
2.4. Services Not Covered by Statement of Work.
Services for Client not covered by a valid Statement of Work and Client accepts those Services and/or Deliverables, Next Mile will be compensated for those Services and/or Deliverables at the current rate of Next Mile for such Services.
3. SERVICES ASSUMPTIONS
3.1 Assumed Performance.
Client and Next Mile make and agree to explicit assumptions about the mutual performance of projects executed as part this Agreement. Unless expressly stricken, the assumptions hereunder apply to all Statements of Work between the Parties and their breach constitutes a breach of this Agreement.
3.2. Project Parameters.
The Parties agree to abide by and perform to the scope and timing parameters established in each Statement of Work.
3.2.1. Schedule Dependencies.
The timeline covered by a Statement of Work begins when it is executed and ends on the stated conclusion date. The Parties assume that if Client approves and executes a Statement of Work on or before the target execution date, the project will have the effective start date and estimated completion date specified on the Statement of Work. Should Client propose an alternative start date or execute the Statement of Work after the assigned date, the Statement of Work remains valid, but scheduled dates and forecasted milestones will move accordingly.
3.2.2. Estimated Scope and Schedule.
Client acknowledges and agrees that the provision of Services and/or Deliverables under this Agreement is an endeavor for which anticipated time, effort, and Expenses can only be estimated, not guaranteed.
3.2.3. Project Conclusion.
On a Fixed Bid project, all Services provided by Next Mile will cease after the conclusion date unless otherwise extended in new Statements of Work or Change Orders. On a Time and Materials project, Services will cease upon reaching the final project milestone or deliverable.
3.2.4. Change Orders.
Either Party may request changes to any individual Statement of Work. Prospective changes or addendums to this Agreement will be documented in a Change Order, which will outline the schedule and cost impacts of a given change request. Change Orders must be approved by Client prior to the execution of the work described. Unless otherwise directed in writing by Client and agreed by Next Mile, Next Mile shall continue to work pursuant to the existing Statement of Work while Client considers a Change Order.
3.3. Explicit Inclusion and Exclusion.
Only services, activities, deliverables, and features described in a Statement of Work are included and will be performed under that Statement of Work when authorized. Services, activities, deliverables, and features not explicitly described in a Statement of Work are not included.
3.3.1. Consulting Services Only.
Unless directly specified, Next Mile Statements of Work cover research-, definition-, discovery-, synthesis-, communication-, and presentation-oriented consulting activities and deliverable creation only. They do not and will not describe nor imply the performance of design production services such as interaction design and visual design or technical execution services such as coding or electrical, mechanical, or software engineering.
3.3.2. No Implicit Change to Next Mile Intellectual Property.
Unless explicitly defined in a Statement of Work, this Agreement does not and will not create, cause, or require changes to the features, performance, availability, or service-level agreements surrounding the usage of Next Mile intellectual property.
3.3.3. Ongoing Support Not Implied.
Unless expressly stated, a Statement of Work does not include effort or costs associated with the ongoing support of or future changes to Next Mile deliverables.
3.3.4. Statement of Work Control.
Client acknowledges that any tasks or deliverables specified in any documents other than the executed Statement of Work will not be part of this Agreement unless or until expressly included in a Statement of Work.
3.4. Engagement Cooperation.
Client shall assist Next Mile in the performance of its obligations under this Agreement and shall undertake the responsibilities specified for Client in the Statement of Work.
3.4.1. Client Representative.
Client shall designate and make available to Next Mile a representative who will be authorized to make binding decisions for Client regarding the obligations under this Agreement. The Client Representative shall perform or have performed the duties and requirements of Client as set forth in this Agreement or in an applicable Statement of Work.
3.4.2. Client Availability.
Client team members will be available for scheduled, reviews, and status calls. Without Client’s engaged participation or the participation of its vendors and partners, progress may be hindered or deliverables may be completed later than planned.
3.4.3. Meeting Cadence.
Next Mile will schedule regular teleconferences with Client project stakeholders to maintain communications on logistics, preparation, status, and direction. Deliverable-specific meetings will be scheduled as needed.
3.4.4. Project Communication.
Client will respond to Next Mile communications in a timely manner (within 24 hours) for the duration of a project to maintain the proposed project cadence. Client will route all project communications through the assigned Next Mile engagement lead.
3.4.5. Location of Performance.
Employees of Next Mile are based out of their home office and are considered to be working from an office location of Next Mile. Should Client require Next Mile to complete the Services at any location other than a Next Mile office location, Client shall be responsible for fees for travel time and all travel, lodging, and food expenses incurred by Next Mile in providing Services at the alternate location.
3.4.6. Working Hours.
Employees of Next Mile work a standard workday in compliance with the labor laws of their location. Further, Next Mile employees work inside the time zone of their location, therefore their hours may differ from Client’s standard working hours. To the extent Client requires meetings outside of employees’ non-standard hours, Client acknowledges that some meeting times may not be available. Next Mile and Client will collaborate to schedule meetings of reasonable duration into mutually amenable timeslots.
Client recognizes that access is critical to progress and will provide access to required systems in a timely manner. Systems may include but are not limited to software access such as administrative logins, code, or email accounts, administrative tracking tools like backlog management, bug tracking, or roadmapping tools, and documentation such as spreadsheets, shared notes, or slide shows.
3.4.8. Hardware Provision.
Some projects necessitate access to the physical hardware of Client. Client agrees to provide any hardware necessary for research, testing, or evaluation to Next Mile in a timely manner.
Next Mile reserves the right to engage a subcontractor to complete all or part of a Statement of Work at its discretion. By executing a Statement of Work, Client agrees that Next Mile can and may subcontract services. Next Mile will notify Client of any subcontracting arrangement at Client’s request.
3.5. Expense Liability.
Client agrees to pay expenses incurred by Next Mile resulting from Next Mile’s performance of services under a Statement of Work on Client’s behalf.
Unless specified explicitly, a Statement of Work and its quoted price does not include travel Expenses. Should a project require travel outside of the metro area of a Next Mile employee’s home office, Next Mile will request written approval from Client prior to said travel, then Client shall be responsible for fees for travel time and all travel, lodging, and food expenses incurred by Next Mile. Next Mile shall invoice client monthly in arrears at actual cost for expenses incurred as a result of travel.
3.5.2. Material and Licensing Expenses.
Unless directly specified, no Statement of Work includes necessary hardware, hosting, software licensing fees or ongoing fees to support product development. Material and licensing costs incurred outside of Next Mile professional services will be billed to Client separately.
3.5.3. Expense Submission.
Should Next Mile incur Expenses resulting from the performance of a Statement of Work, Next Mile will invoice Client monthly in arrears at actual cost for expenses incurred as a result of travel, which may include: mileage expense, airline tickets, train tickets, parking, tolls, taxis, shuttles, rental car, hotel room, individual meals (breakfast, lunch, dinner), hotel telephone, cellular phone charges, wifi charges, tips, and transfers. Next Mile will submit an invoice with an expense report including digital copies of all receipts for such travel.
3.6. Reasonable Limits to Control.
The Parties agree that neither Party can control exogenous factors that may impact the performance of a Statement of Work or the viability of a resulting commercial endeavor.
3.6.1. Commercial Success.
Next Mile is not responsible for the marketing, marketing success, return on investment, or commercial success of any new products or services developed as a result of the services performed in any Statement of Work.
3.6.2. Regulatory Compliance.
All regulatory compliance activities and artifacts concerning the creation of any products or services discussed pursuant to this Agreement including all documentation, audits, audit compliance preparation, corrective actions, and legal liabilities are the sole responsibility of Client.
3.6.3. Client Control of Influencing Systems.
Next Mile assumes that Client owns the development, testing, and maintenance of Client hardware, firmware, software, and webservices. Client acknowledges that changes to Client-owned hardware, firmware, software, webservices, and/or any other dependency may impact this project’s estimate, scope, or timeline and may trigger a Change Order.
3.6.4. Uncontrolled Systems.
Client acknowledges that systems architecture or analysis may uncover issues that neither Client nor Next Mile can reasonably solve, such as market constraints, regulatory barriers, physical limitations, operating system configuration issues, driver issues, customer network issues, other local network problems, or cellular carrier or internet service issues. Client recognizes that Next Mile cannot control these variables and is not responsible for resolving them.
4.1. Client Ownership of Client Deliverables.
To the extent that the Client Deliverables provided hereunder include original material subject to copyright or patent, Next Mile agrees that the Services are done as a "work for hire" as that term is defined under U.S. copyright and patent law, and that as a result, Client shall own all copyrights or patents in and to the Client Deliverables.
4.2. Next Mile Assignment of Ownership to Client.
To the extent that the Client Deliverables do not qualify as a work for hire under applicable law, and to the extent that the Client Deliverables include material subject to copyright, patent, trade secret, or other proprietary right protection, Next Mile hereby assigns to Client all of Next Mile’s right, title, and interest in and to the Client Deliverables that are the subject of an applicable Statement of Work upon payment in full of all amounts owed to Next Mile by Client.
4.3. Perfecting Client Ownership of Client Deliverables.
Next Mile will provide reasonable and timely assistance on a Fixed Bid or Time and Materials basis and/or execute all documents necessary to enable Client to perfect, preserve, register, or record its rights in or to the Deliverables, as set forth herein.
4.4. Ownership of Consulting Tools.
Next Mile is and will remain the owner and/or licensee of all right, title and interest in and to any Consulting Tools, including those licensed or delivered to Client. Client acknowledges and agrees that neither these Terms and Conditions nor any Statement of Work transfers or grants Client any rights, title, or interest in and to the Tools. Client’s only rights to the Consulting Tools are determined in the section Client License to Consulting Tools below, and no other rights to the Consulting Tools are provided by implication, estoppel, or any other legal theory.
4.5. Client License to Consulting Tools.
By incorporating any Consulting Tools, original work, or original authorship into any Client Deliverables, Next Mile hereby grants Client a worldwide, perpetual, nonexclusive, transferable, irrevocable, royalty-free, fully paid up right and license to distribute, publish, display, use, copy, modify, prepare derivative works of the Consulting Tools.
4.6. Third-party Providers.
Next Mile may recommend Third-party Providers of electronics hardware, software, or various consulting services. Next Mile maintains no commercial interest in any Third-party Provider. Next Mile makes no representations or warranties of any kind with respect to Third-party Providers. Unless explicitly agreed to, Client shall procure any and all Licenses, Services, or required Deliverables from Third-party Providers directly and independently of this Agreement.
5. INVOICES AND PAYMENTS
5.1. Invoicing of Fees and Expenses.
Client agrees to pay Next Mile for professional services Fees and Expenses incurred. Next Mile will invoice Client for Fees, Client-authorized Expenses, and Incidental Expenses accordingly.
5.1.1. Invoice Terms.
Client acknowledges and agrees that the timing of payments owed to Next Mile reflects the timing of Services provided. Client shall pay all invoiced amounts due to Next Mile within 15 days (NET 15) from the date of Next Mile’s invoice unless otherwise specified and agreed to in an executed Statement of Work.
5.1.2. Invoice Detail.
Invoices for Time and Materials projects will provide a general description of the tasks completed in the associated hours. Invoices for Fixed Bid projects will not include any information other than the amount owed. If Client requests information in addition to that included on their invoice, Client shall pay Next Mile the reasonable fees and costs incurred in gathering requested information.
5.1.3. Down Payments.
Next Mile will invoice any down payments upon execution of any applicable Statement of Work
5.1.4. Payment Currency.
All payments are due in U.S. dollars.
5.2. Changes to Payment Terms.
Should Client default on a payment, Next Mile may alter billing terms or fees at its sole discretion. Next Mile also reserves the right to change billing practices such as the dates on which bills are sent and the types of charges included on invoices. Next Mile will notify Client of any such changes with a 30-day written notice.
5.3. Past-due Invoices.
Next Mile reviews all past-due invoices and reserves the right to act in the event an undisputed invoice is not paid within its specified term. Next Mile may:
- Notify Client of the delinquent payment by phone and/or email and request payment.
- Discontinue or hold its Services without regard or liability for any project deadlines or other provisions of this Agreement or applicable Statement(s) of Work.
- Cancel its Services for pending and/or future projects.
5.4. Late Payment Interest Charges.
Any payment not received within the period specified on its corresponding invoice will accrue interest at a rate of 1.5% per month or the highest rate allowed by law. Client will also pay all costs and Expenses incurred by Next Mile in exercising its right to recover amounts owed to Next Mile hereunder.
5.5. Client Acting on Behalf of End Client.
In the event that Client is acting as an agent of a separate End Client in this Agreement, Client remains responsible for all payment obligations incurred pursuant to this Agreement regardless of the financial status of Client’s End Client.
6. RECORDS AND AUDIT
Next Mile will keep records of invoices and expense receipts for all for fees and Expenses for which Next Mile seeks reimbursement by Client. Records will exclude any documentation that contains Next Mile’s Confidential Information specific to its employees’ salaries, timesheets, or other expenses. All records will be stored electronically for a minimum of two years after their creation.
For purposes of audit, Client may request access to the Records described in the previous section, Records.
6.2.1 Audit Requests and Notices.
Audit requests will be limited to 1 audit every 2 years.Requests must be submitted to Next Mile in writing by Client’s employees or its duly authorized representative and allow 10 business days notice. The notice of audit must declare the scope of the audit, identify the information requested, and propose the method of acquiring said information.
6.2.2. Audit Fulfillment.
Audit fulfillment will be conducted on days agreeable to Next Mile during normal business hours only. Client will bear any and all expenses incurred by Client and/or its auditor, and Client will reimburse Next Mile for any expenses attributable to any audit initiated by Client. All auditors will be required to sign confidentiality agreements provided by Next Mile prior to the collection or release of any information by Next Mile.
6.2.3. Audit Reports.
Next Mile will be entitled to receive copies of any draft or final reports compiled by auditors. Next Mile has the right to review and comment on audit findings before release to Client, and Next Mile’s comments will be included and presented in the final report. Data or results obtained from any audit may not be warehoused for aggregation or analysis.
7. REPRESENTATIONS AND WARRANTIES
7.1. Mutual Representations and Warranties.
Each Party represents and warrants that:
- It has the full authority to enter into and perform its respective obligations under this Agreement in full accordance with the terms hereof.
- This Agreement has been duly authorized, executed and delivered by it and constitutes the valid, legal and binding agreement of it and its terms are enforceable against such Party.
- Entering into and performing its respective obligations under this Agreement will not breach or create a default under any other agreement to which it is a party.
7.2. Next Mile Representations and Warranties.
Next Mile represents and warrants that:
- The Services and Deliverables will be provided by personnel in a workmanlike and professional manner.
- In providing the Services and Deliverables hereunder, it shall comply with all applicable U.S. federal, state, and local laws, ordinances, rules and regulations applicable to consulting Services.
7.3. Client Representations and Warranties.
Client represents and warrants that:
- It has full and legal right to disclose, transfer, assign, convey, and/or authorization to use any intellectual property rights it may deliver to or ask Next Mile to reduce to practice, review, use, or implement.
- If it requests Next Mile to use and/or develop, reduce to practice, write, design, implement, or deliver any intellectual property in connection with or related to the Services at any time (the “Client Inputs”), then any such Client Inputs will not, nor cause any of the Deliverables, or other material, data, information, or Services to:
- Infringe upon any intellectual property rights of any person, business, or entity.
- Constitute an unauthorized disclosure of any confidential information owned by a third party.
- Violate any civil code or procedure, ordinance, statute, law, or regulation, governmental or otherwise.
- Result in product liability, breach of contract, tort, personal injury, death, or property damage.
- Constitute misappropriation of any intellectual property rights, trade secret or proprietary know-how.
8. WARRANTY DISCLAIMER
EXCEPT FOR THE EXPLICIT WARRANTIES SET FORTH IN THIS AGREEMENT, NEXT MILE AND ITS AGENTS, OFFICERS, MANAGERS, DIRECTORS, GOVERNORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES PROVIDE ALL SERVICES AND DELIVERABLES “AS IS, WITH ALL FAULTS,” AND MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIM ALL WARRANTIES OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NEXT MILE WILL CREATE A WARRANTY UNLESS FIRST MEMORIALIZED IN A STATEMENT OF WORK.
9.1. Indemnification by Next Mile.
Next Mile shall hold harmless, defend and indemnify Client and its Affiliates from all claims, demands and liabilities, including attorneys’ fees and expenses, arising out of any breach of this Agreement by Next Mile or the negligent acts, omissions, or willful misconduct of Next Mile, except as excluded by subsection Implementation of Third-party Intellectual Property. Next Mile shall obtain Client’s written consent prior to entering into any settlement agreement, and shall collaborate with Client as to the strategy and resolution over any claim.
9.1.1. Implementation of Third-party Intellectual Property.
Indemnification obligations do not extend to any and all damages, costs, and expenses (including reasonable attorneys’ fees, expenses, and costs) arising from any suit filed by a third party, alleging that the Services used in the creation of the Deliverable hereunder, directly or indirectly, infringes any intellectual property rights of that third party. Indemnification responsibility against third party intellectual property breach lies with the implementation party responsible for coding or engineering Client’s digital product or service.
9.1.2. Total and Entire Liability.
The total liability of Next Mile to Client under this will be limited to the amounts paid by Client under the applicable Statement(s) of Work under which the alleged breach occurred. This encompasses the entire liability of Next Mile and the sole and exclusive remedy for Client with respect to any claim.
9.2. Indemnification by Client.
Client shall hold harmless, defend and indemnify Client and its Affiliates from all claims, demands and liabilities, including attorneys’ fees and expenses, arising out of any breach of this Agreement by Client or the negligent acts, omissions, or willful misconduct of Client. Client shall obtain Next Mile’s written consent prior to entering into any settlement agreement, and shall collaborate with Client as to the strategy and resolution over any claim.
9.3. Indemnification Against Intellectual Property Breach by Client.
Client agrees to defend and indemnify Next Mile, its Affiliates, agents, officers, directors, employees, successors, and assigns from and against any and all damages, costs, and expenses (including reasonable attorneys’ fees, expenses, and costs) arising from any suit filed by any third party stemming from a breach by Client, its officers, its employees, or its agents, of any warranty or representation contained in this Agreement; or any suit filed by any third party, arising from or relating in any way to Next Mile having followed instructions, requirements, or specifications provided by Client in the performance of Services or creation of Deliverables.
9.4. Indemnification Requirements.
With respect to all indemnification obligations, the indemnitee shall:
- Notify the indemnifying party in writing promptly after the indemnitee becomes aware of the claim for which the indemnification obligation applies.
- Subject to the terms set forth in section Assumption of Defense, allow the indemnifying party control of the investigation, defense, and settlement of the claim.
- Cooperate with the indemnifying party in the defense of the claim at the reasonable expense of the indemnifying party.
The indemnifying party shall defend the indemnitee with counsel that is reasonably acceptable to the indemnitee.
9.5. Assumption of Defense.
If the indemnifying party assumes the defense of a claim, it shall inform the indemnitee of the progress of the defense, compromise, or settlement, and allow the indemnitee to participate in the suit in an advisory capacity. If the indemnifying party fails to assume the defense of any claim within 15 calendar days after receipt of notice of the claim, indemnitee will (upon notice to indemnifying party) have the right to undertake, at expense of indemnifying party, the defense, compromise, or settlement of the claim, subject to the limitations set forth in the preceding section Indemnification by Next Mile.
10. LIMITATION OF LIABILITY
SUBJECT TO THE LIMITATIONS SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY FAILS AND REGARDLESS OF WHAT CAUSE OF ACTION (INCLUDING NEGLIGENCE) OR CLAIM FOR RELIEF IS ASSERTED, IN NO EVENT WILL EITHER PARTY OR ITS AGENTS, OFFICERS, DIRECTORS, GOVERNORS, EMPLOYEES, SUCCESSORS, ASSIGNS, OR AFFILIATES BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF DATA, LOST TIME, LOST SAVINGS, LOST CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, OR FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. WITH THE EXCEPTION OF THE AMOUNT THAT CLIENT OWES NEXT MILE FOR SERVICES RENDERED, THE AGGREGATE LIABILITY OF EITHER PARTY FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT PAID BY CLIENT TO NEXT MILE EITHER FOR THE 3 MONTHS IMMEDIATELY PRECEDING THE EVENTS BEGETTING SUCH CLAIM OR UNDER THE STATEMENT OF WORK BEGETTING SUCH CLAIM, WHICHEVER IS LESS.
11. EXCLUSIVE REMEDIES.
Any and all claims arising out of or relating to this Agreement, except for any claim against Client for the amount the Client owes Next Mile for Services rendered, will expire unless filed within 1 year after the first date of performance or breach, which in whole or in part generates the claim. Remedies will be determined in accordance with Minnesota law, and are exclusive and in lieu of all other remedies available at law or in equity for any act performed in connection with this Agreement or for any breach of this Agreement whether brought under a theory of contract liability, tort liability, or any other theory.
12.1. Non-disclosure Terms.
If the Parties have not entered into a non-disclosure agreement prior to the Effective Date (a “Separate NDA”, addressed in the following section), then the following terms will apply:
12.1.1. Non-disclosure Obligation.
Receiving Party agrees to:
- Hold Confidential Information in confidence and not disclose it to any third party.
- Protect Confidential Information with the same degree of care with which it protects its own Confidential Information.
- Refrain from disclosing any Confidential Information to any person, firm, or business, except to the extent necessary for analysis in connection with matters authorized under this Agreement, and for any other purpose Disclosing Party may authorize in writing.
12.1.2. Exclusions from Non-disclosure Obligation.
The obligations of each Party under the preceding section Non-disclosure Obligation shall not apply when the other Party’s Confidential Information was:
- In the public domain at or subsequent to the time such portion was communicated to Receiving Party, through no fault of Receiving Party.
- Rightfully in the possession of Receiving Party, to the best of Receiving Party’s knowledge, free of any obligation of confidence at or subsequent to the time such portion was communicated to Receiving Party by Disclosing Party.
- Developed by agents of Receiving Party independently of and without reference to any information communicated to Receiving Party by Disclosing Party.
- Communicated by Disclosing Party to an unaffiliated third party free of any obligation of confidence.
- Approved (via written authorization) by Disclosing Party for release by Receiving Party.
- Disclosed in response to a valid court, government, or other legal order, or as necessary to establish the right of either Party under this Agreement.
12.1.3. Notice of Compelled Disclosure.
If Receiving Party is required by law to disclose Confidential Information (pursuant to a discovery, subpoena, warrant, or similar legal process), Receiving Party shall promptly notify Disclosing Party upon receipt of any demand for disclosure and reasonably cooperate with Disclosing Party (at the expense of Disclosing Party) in any attempt to quash such legal process, seek a protective order, or obtain other relief requested by Disclosing Party.
12.1.4. Ownership and Return of Confidential Information and Material.
All Process Information, Proprietary Documentation, Intellectual Property, Future Plans, and Sensitive Information of each of the Parties that has been designated as Confidential Information shall remain the property of Disclosing Party, and Disclosing Party neither grants nor implies license or other rights to such Confidential Information. All material provided by Disclosing Party to Receiving Party that has been designated in writing to be the property of Disclosing Party shall remain the property of Disclosing Party. Upon written request of Disclosing Party, Receiving Party shall destroy or return to Disclosing Party all Confidential Information, except when that Confidential Information is required by law to maintain or archived as part of a legal, disaster, or recovery backup system.
12.2. Separate NDA.
If the Parties have entered into a non-disclosure agreement prior to the Effective Date (a “Separate NDA”), then the Parties agree that such Separate NDA shall be incorporated into this Agreement by reference, and the preceding section Non-disclosure Terms is not a part of this Agreement. To the extent that there is a conflict between that non-disclosure agreement and the other terms of this Agreement, the Separate NDA shall take precedence.
13.1. Limits to Employee Solicitation.
During the term of any Statement of Work and for a period of 1 year thereafter, neither Party shall, without the prior written consent of the other Party:
- Solicit, induce, recruit, encourage, request, or attempt to influence any employee of the other Party to terminate their employment.
- Employ, hire, or take away any employee of the other Party who had been materially involved in the project governed by the applicable Statement of Work, either for itself or for any other person or entity.
13.2. Non-solicitation Exceptions.
Nothing shall prevent either Party from employing an employee of the other Party who:
- Gets directed to the other Party by employment search firms, provided said firms are not instructed by the hiring Party to initiate employment discussions with that individual.
- Contacts the other Party on their own initiative without any direct or indirect solicitation by the hiring Party.
- Responds to a general employment advertisement when such solicitation is not specifically directed at that individual.
Occasionally, Next Mile may negotiate a contract-to-hire arrangement for a specific employee or contractor with Client. In this agreement, Next Mile’s employee or contractor would provide Services to Client for a fixed period, then Client gains the right to hire said employee or contractor for a specified fee paid to Next Mile.
The term of this Agreement commences on the Effective Date and remains in force while there is an active Statement of Work between the Parties.
15.1. Termination for Material Breach.
Either Party may terminate this Agreement in the event of a material breach by the other Party of its obligations under part of this Agreement, if the Party in breach fails to resolve the condition of breach within 10 days after receipt of written notice of breach.
15.2. Termination for Convenience.
Either Party may terminate this Agreement at any time for its convenience in whole or in part, with or without cause, by giving 60 days written notice to the other Party.
15.3. Termination for Insolvency.
This Agreement will terminate automatically, without notice upon either Party making an assignment for the benefit of creditors, upon the institution by or against either Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of the debt of either Party, or upon the dissolution of or cessation of business by either Party.
15.4. Termination for Anticipatory Infringement.
Next Mile reserves the right to terminate this Agreement or any Statement of Work with immediate effect at any time if Next Mile reasonably believes that the Services and/or Deliverables that are the subject of any applicable Statement of Work could potentially infringe on the rights of a third party provided Client has not provided guarantees to the contrary.
15.5. Effect of Termination.
As of the effective date of termination of this Agreement or Statement of Work, Next Mile will stop work on the Services and/or Deliverables and Client will be liable for:
- Effort incurred prior to the effective date of such termination.
- Expenses that have been incurred and that are not cancellable.
- The time and materials necessary to transfer any Services and/or Deliverables.
- Any costs owed to Next Mile resulting from accounting, legal, or recordkeeping assistance.
- Any additional charges as mutually agreed in writing to be essential for terminating said Services and/or Deliverables.
15.6. Statement of Work Prepaid Fees.
Should Client terminate a Statement of Work in progress, Next Mile shall reimburse Client for any deposit, down payment, or prepaid fee on a pro rata basis excluding any applicable cancellation fee.
15.7. Statement of Work Cancellation Fee.
Next Mile reserves the right to apply a cancellation fee to account for Services efforts, opportunity cost, or resource allocation cost that occurred pursuant to a terminated Statement of Work.
15.8. Survival of Terms.
In the event of termination of this Agreement or any Statement of Work, for any reason or upon the expiration of the term of this Agreement, the obligation of Client for payment of Services rendered prior to, or on the date of expiration or termination, will survive any such termination, and will be enforceable after termination. Additionally, the following sections of this agreement shall survive termination:
- 4. Ownership
- 5.Invoices and Payments
- 6.Records and Audit
- 7.Representations and Warranties
- 8.Warranty Disclaimer
- 10.Limitation of Liability
- 11.Exclusive Remedies
- 15.Survival of Terms (this section)
- 20.Governing Law
16. FORCE MAJEURE
16.1. Force Majeure Liability.
No Party will be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any delay or failure in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control.
16.2. Force Majeure Events.
Applicable uncontrollable events (“Force Majeure Events”) include:
- Flood, fire, earthquake or explosion.
- War, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest.
- Government order or law.
- Actions, embargoes or blockades in effect on or after the date of this Agreement.
- Action by any governmental authority.
- National or regional emergency.
- Strikes, labor stoppages or slowdowns or other industrial disturbances.
- Shortage or stoppage of energy and/or transportation facilities and infrastructure.
- Other Acts of God as defined by United States law.
16.3. Force Majeure Exceptions.
Neither a change in a Party’s financial circumstances nor a change in global, national, or market economic circumstances will be considered a Force Majeure Event.
16.4. Force Majeure Notice.
The Impacted Party shall give prompt notice to the other Party, as determined by the scope of the Force Majeure Event, stating the period of time the occurrence is expected to continue.
16.5. Force Majeure Resolution.
The Impacted Party will use diligent efforts to end the delay or failure and minimize the effects of the Force Majeure Event. The Impacted Party shall resume the performance of its obligations as soon as practicable after resolving the Force Majeure Event. In the event that the Impacted Party’s delay or failure remains unresolved for a period of 30 days following written notice given by it, either Party may thereafter terminate this Agreement upon 5 days written notice.
The Parties understand and agree that Statements of Work made under this Agreement may be entered into by an Affiliate of either Party. In the event that an Affiliate of a Party enters into a Statement of Work, that Affiliate becomes subject to all of the respective obligations of the applicable Party under this Agreement. Each Party agrees to be held fully responsible for the performance of this Agreement by its Affiliate.
This Agreement binds and benefits the Parties, their legal representatives, successors, and assigns. Unless expressly detailed in this Agreement, neither Party may assign, transfer, convey, or encumber this Agreement or any rights granted in it, either voluntarily or by operation of law, without the prior written consent of the other Party, and any attempt to do so shall be considered null and void. Notwithstanding the foregoing, any successor in interest by merger, operation of law, or purchase of the entirety of or substantially all of the business or assets of either Party may acquire all interest hereunder, provided such successor is subject to all obligations hereunder.
All notices and other communications required by this Agreement must be sent in writing to the Parties at the addresses set forth below via hand delivery or overnight courier service. Notices are effective only upon receipt and if the Party giving the notice has complied with these requirements.
If to Client:
The Client’s most recent billing address on file with Next Mile.
If to Next Mile:
Next Mile IoT LLC
2792 Keller Parkway
Maplewood, MN 55109
20. GOVERNING LAW.
This Agreement will be governed by and interpreted in accordance with the laws of Minnesota, except for any conflicts of law rules or principles. Should any suit or proceeding arise from this Agreement, the Parties agree that the courts of Minnesota will have exclusive jurisdiction and the Parties shall submit to the jurisdiction of such courts.
21. NO WAIVER.
No delay or failure of either Party to exercise any right, power, or privilege under this Agreement is a waiver of that right, power, or privilege. No singular or partial exercise of any right under this Agreement precludes any other or further exercise of that right or any other right. Any waiver of any provision of this Agreement is effective only in the specific instance and for the specific purpose for which the waiver is given.
22. RELATIONSHIP OF THE PARTIES.
Next Mile is an independent contractor and Client is an independent entity. Nothing in this Agreement will be construed as creating any joint venture, shared investment, partnership, employment, or agency relationship between the Parties.
Client expressly consents to Next Mile identifying Client to third parties as a client of Next Mile, including reproducing and publicizing its name, trademarks, and logos on Next Mile’s website and in company presentations. Additionally, Client consents to Next Mile describing the Services and Deliverables created pursuant to this Agreement on the corporate website of Next Mile, in presentations, and in other marketing materials. Similarly, Next Mile expressly consents to Client’s use of the name, trademarks, and logos of Next Mile. Either Party may revoke this consent by requesting a revocation from the other Party in writing.
24. TIMELY APPROVAL.
This Agreement requires each Party’s consent and approval. Such consent and approval may not be unreasonably or arbitrarily withheld or delayed. Should consent and approval be withheld or delayed unreasonably, either Party may terminate the pursuit of this Agreement including, but not limited to, proposed Statements of Work.
25. NO THIRD-PARTY BENEFICIARY.
This Agreement exists solely for the benefit of the Parties. It confers no rights to any person or entity as a third-party beneficiary.
26. NO PRIMARY DRAFTER.
All Parties acknowledge and agree that they have mutually negotiated the Terms and Conditions of this agreement. Any provision contained herein with respect to which an issue of interpretation or construction arises will not be construed to the detriment of the drafter on the basis that such Party or its professional advisor was the drafter, but will be interpreted according to the intent of the Parties as evidenced by the entire Agreement.
Any provision of this Agreement deemed prohibited or unenforceable in any jurisdiction is ineffective to the extent of such prohibition or unenforceability in that jurisdiction alone. The validity, enforceability, or legality of all remaining provisions will stay in full effect.
28. ORDER OF PRECEDENCE.
The provisions of an applicable Statement of Work will supersede and control over any conflicting provision in these Terms and Conditions. Additionally, the provisions of any Separate Services Agreement or Custom Services Agreement between the Parties shall control over any conflicting provision in these Terms and Conditions. The provisions of these Terms and Conditions will control over any standard or boilerplate terms and conditions included on any document provided by Client to Next Mile, including but not limited to purchase orders. Any such terms are unacceptable to and expressly rejected by Next Mile, are hereby waived by Client, and will not become part of this Agreement.
Any Statement of Work or other document executed per these Terms and Conditions may be executed in multiple counterparts. Each counterpart shall be considered original, and when taken together, counterparts constitute one and the same instrument.
30. ENTIRE AGREEMENT.
his Agreement constitutes and expresses the entire agreement and understanding between the Parties and supersedes any prior communications, understanding, commitments, or agreements, whether oral or written, with respect to the subject matter hereof. The Parties are not relying on any representations or warranties other than those expressly provided herein. Modifications to this Agreement must be in writing and signed by an authorized representative of each Party before taking effect. Any Statement of Work executed as part of this Agreement together with these Terms and Conditions will be considered a separate agreement, and no Statement of Work will be deemed to amend or replace any other Statement of Work unless expressly stated therein.