Article 1 – Definitions
1.1 “Statement of Work” ( “SOW”) a document such as a work order, detailed test request, or other similar documentation issued by the Customer and accepted by FTTA in writing which contains a description of the services to be performed, any required deliverables, fees for performing the services and any additional information agreed to in writing by the parties.
1.2 “Testing Services” shall mean the services as set forth in a statement of work..
Article 2 – Statement of Work
2.1 The work described in each SOW issued by Customer and accepted by FTTA in writing shall constitute Testing Services under this Agreement.
2.2 In the event that the content of the Testing Services needs to be changed, FTTA or the Customer, as the case may be, shall notify the other Party of such proposed change immediately, and Customer and FTTA shall consult each other to change the content of the SOW.
Article 3 – Performance of the Testing Services
3.1 FTTA shall undertake the Testing Services in accordance with the terms and conditions defined in this Agreement, including the applicable SOW.
3.2 FTTA shall abide by all federal, state, and governmental laws and regulations in conducting the Testing Services.
3.3 Customer shall provide FTTA with all necessary information for FTTA to perform Testing Services, and FTTA shall provide Customer with information such that Customer may follow the progress of the Testing Services.
3.4 The engineers and technicians of FTTA involved in the Testing Services shall communicate with Customer regularly, and meet as necessary, in order to discuss any technical issues and decide whether any changes are necessary to amend the schedule, amount of money, or content of the SOW.
3.5 Upon prior written notice to Customer, FTTA may entrust a third party to conduct a part or all of the Testing Services on behalf of FTTA on the following conditions.
(1) FTTA shall impose the same degree of obligations as set forth in this Agreement and the SOW on the third party; and
(2) FTTA shall bear the performance obligations of the Testing Services based on this Agreement and the SOW.
3.6 Nothing herein contained shall restrict FTTA from providing consulting or support services to others during the Term of this Agreement.
3.7 It is understood that FTTA employees assigned to perform the Testing Services shall be and remain employees of FTTA whether the Testing Services is performed at FTTA facilities or Customer’s facilities, and are not and shall not for any purpose be considered Customer’s employees. FTTA shall be solely responsible for the payment of salaries and all matters relating thereto, including the withholding and/or payment of all payroll taxes, worker’s compensation, unemployment compensation, insurance-related benefits, vacation pay, holiday pay and all such additional legal requirements applicable to FTTA employees.
Article 4 – Representative of the Testing Services
4.1 Upon request by Customer, FTTA shall determine the representative of FTTA to Customer for the Testing Services who shall be in charge of the overall management of the Testing Services, and shall notify Customer of such representative.
Article 5 – Confidentiality
5.1 FTTA agrees that neither FTTA nor any of its engineers, technicians or agents shall, at any time during the term of the SOW and for a period of three (3) years following the expiration or any earlier termination of this Agreement, divulge or disclose information which is plainly marked as “confidential” and which is disclosed by Customer under this Agreement or any SOW (hereinafter referred to as the “Confidential Information”), to any third parties without the prior written authorization by Customer, and shall not use such Confidential Information for any purpose other than in connection with the Testing Services.
5.2 In case Customer discloses Confidential Information in an intangible form, Customer shall notify FTTA in writing of the confidentiality of such information, in sufficient detail to permit FTTA to know which information is regarded as confidential, within 30 days from the disclosure.
5.3 FTTA warrants, represents and covenants to Customer that all of its engineers, technicians or agents conducting the Testing Services under this Agreement are under a contractual obligation containing similar obligations to maintain the non-disclosure obligation set forth in Section 5.1 of this Agreement, and have been educated regarding their respective duties and obligations regarding confidentiality as it relates to this Agreement.
5.4 Nothing contained herein shall prohibit FTTA from using any of FTTA’s general knowledge or knowledge acquired under this Agreement to perform similar services for others; provided however, that FTTA shall not (i) use any of Customer’s Confidential Information in providing services to others or (ii) provide to others any information created by FTTA specifically for Customer.
Article 6 – Exceptions to the Confidential Information
6.1 The confidentiality obligations set forth in Article 5 of this Agreement shall not apply to any information which:
(1) is possessed by FTTA before it is disclosed by Customer;
(2) is lawfully obtained by FTTA from a third party free of any restriction;
(3) is already known in the public domain at the time of disclosure;
(4) becomes available to the public after the disclosure without breach of this Agreement by FTTA; or
(5) is independently developed by FTTA, without use of the Confidential Information.
Article 7 – Intellectual Property Right
7.1 Any and all intellectual property rights (such as trade secrets, copyrights, and rights in utility models) developed as a specific result of conducting the Testing Services, as described in the SOW, shall belong to FTTA.
Article 8 – Limitation of Warranties
8.1 FTTA represents and warrants (1) that the execution, delivery and performance of this Agreement by FTTA has been duly authorized by all necessary corporate action, (2) that the execution, delivery and performance of this Agreement does not (and will not with the passage of time) conflict with or constitute a breach or default under any agreement or order to which FTTA is a party or by which the FTTA facility or any part thereof is bound or require the consent of any third party or governmental entity, (3) that Customer will have, throughout the Term, the uninterrupted right of access to the FTTA facility, upon reasonable prior notice to FTTA, for purposes of the Testing Services (except for interruptions for maintenance by FTTA, including the related services of FTTA personnel, in accordance with the terms and conditions of this Agreement and subject to applicable FTTA established rules, regulations and requirements regarding access to the FTTA facility), and (4) that FTTA owns or has a license from the FTTA facility owner to use and operate the FTTA facility and the property associated therewith.
8.2 The services shall be performed in a professional and workmanlike manner by appropriately trained personnel. FTTA EXPRESSLY DISCLAIMS ANY OTHER EXPRESS AND IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR INFRINGEMENT (ALL IMPLIED WARRANTIES BEING HEREBY EXPRESSLY DISCLAIMED) AS TO THE ACCURACY OF THIS DATA OR THE TESTING SERVICES, AND FTTA WILL IN NO EVENT BE LIABLE FOR ANY LOST PROFITS OR INCIDENTAL OR CONSEQUENTIAL DAMAGES IN RELATION TO TESTING SERVICES PERFORMED AND/OR TEST DATA PROVIDED BY FTTA. FTTA IS NOT RESPONSIBLE FOR THE PERFORMANCE, ADEQUACY, OR SAFETY OF THE PRODUCT BEING TESTED. FTTA IS NOT RESPONSIBLE FOR ANY TEST DATA GENERATED BY CUSTOMER OR FOR THE USE OF ANY TEST DATA, WHETHER GENERATED BY FTTA OR CUSTOMER. FTTA SHALL HAVE NO LIABILITY FOR ANY DEDUCTIONS, INFERENCES OR GENERALIZATIONS DRAWN BY CUSTOMER OR OTHERS FROM SUCH TEST RESULTS AND REPORTS.
Article 9 – Payment
9.1 In consideration of undertaking to perform the Testing Services, Customer undertakes to pay FTTA a fee defined in each SOW.
9.2 In the event that there is a material change in the scope of the Testing Services, FTTA may request in writing a modification of the fees specified in the SOW. The Parties shall then discuss the proposed modification of the fees, and if such modification is approved by Customer, the authorized representatives of each of the Parties shall sign a writing expressly stating the agreed modification of fees in a manner consistent with Section 18 of this Agreement.
9.3 Unless otherwise agreed, the cost to Customer for any additional work (beyond the work included in the SOW), will be at FTTA’s applicable rates and payment terms, and otherwise subject to the terms and conditions of this Agreement.
Article 10 – Equipment and Facility
10.1 In the event that Customer requests FTTA to use equipment in conducting the Testing Services, Customer may lease or lend (on a bailment basis) to FTTA Customer’s own equipment, machinery, materials, facilities and other items (hereinafter referred to as the “Customer Property”) on the following conditions.
(1) FTTA shall obey all the warnings and instruction of the Customer Property given by Customer;
(2) FTTA shall use the Customer Property solely for the purpose of the Testing Services;
(3) FTTA shall not disclose, lease, or provide in any way the Customer Property to any third party without a prior approval of Customer;
(4) FTTA shall properly house and follow all customer instructions related to maintenance of the Customer Property;
(5) FTTA shall prominently mark it as property of Customer; and
(6) FTTA shall return the Customer Property to Customer in accordance with Article 11 below.
Customer will have, upon prior reasonable notice to FTTA the right to enter FTTA’s premises to inspect Customer Property. Upon request at any time and following receipt of payment for the work, FTTA will deliver Customer Property F.O.B. FTTA’s facility, properly packed and marked in accordance with the requirements of Customer.
10.2 Customer shall be solely responsible for the delivery to FTTA of all Customer Property, and while in transit or in storage, the risk of damage or loss of all such items shall be solely that of Customer. FTTA will cooperate with Customer’s directions regarding Customer’s Property, including without limitation removal of the property from the FTTA facility. Customer agrees to reimburse FTTA for FTTA’s costs discussed and agreed by both Parties in removing such Customer Property.
10.3 Customer agrees that if the Customer Property should fail during its use causing personal injury or death to any persons or property damage to the FTTA facility or to any equipment at the facility, Customer shall be responsible and liable for the foregoing.
10.4 FTTA reserves the right to approve in advance all requirements and test programs of Customer as to safety. Prior to conducting any tests for, or with, Customer, FTTA reserves the right to inspect any and all Customer Property to determine whether such Customer Property appears to be appropriately configured and constructed for testing. However, by approving such items, FTTA shall not be considered accepting responsibility for the test program, nor shall its approval of standards be considered as an endorsement as to the safety of the proposed testing.
Article 11 – Return Obligation
11.1 Upon request of Customer, FTTA shall promptly return to Customer any and all Confidential Information (including all copies thereof) and the Customer Property.
11.2 FTTA shall return the Customer Property in the condition in which it was received from Customer, with the exception of reasonable wear and tear, as well as any other changes in the condition of the Customer Property authorized as part of, or reasonably foreseeable from the performance of, the Testing Services under this Agreement and any related SOW(s), and subject to Customer’s representations, warranties and responsibilities under this Agreement, including without limitation under Sections 10.2 and 10.4. Notwithstanding the foregoing, FTTA shall reimburse Customer for costs of the damage of the Customer Property in case such damage is solely due to negligent act or failure to act by FTTA or any FTTA agent or employee.
Article 12 – Safety Related Matters
12.1 Customer acknowledges that FTTA shall, at all times maintain complete control of the FTTA facility and shall have the right, in its sole discretion, to prohibit Customer’s employees or agents, from entering any area of the facility and to remove said Customer Property from the facility if FTTA personnel reasonably determine that there is a threat to the safety and operation of other test products, drivers, or personnel, or that the surface conditions do not permit the proposed testing without unreasonable damage to the surface in question. All services provided by FTTA under this Agreement including, without limitation, testing for Customer, shall only be conducted so long as such services are in compliance with FTTA safety policies.
12.2 Customer acknowledges that Customer and any guests must abide by such rules and policy governing improper and/or unauthorized use of the FTTA facility under this Agreement.
Article 13 – General Liability Insurance/Indemnification
13.1 Customer, at its own expense, shall maintain general liability insurance insuring Customer (and naming FTTA as an additional insured) with the minimum coverage of: $1 million each occurrence and $2 million general aggregate limit. Upon request, Customer shall provide FTTA with a certificate of insurance naming FTTA as an additional insured. The certificate shall provide for thirty (30) days written notice to FTTA in the event of cancellation or material change of coverage.
13.2 FTTA, at its own expense, shall maintain general liability insurance insuring FTTA (and naming Customer as additional insured) with the minimum coverage of: $1 million each occurrence and $2 million general aggregate limit. Upon request, FTTA shall provide Customer with a certificate of insurance naming Customer as an additional insured. The certificate shall provide for thirty (30) days written notice to Customer in the event of cancellation or material change of coverage.
13.3 Customer shall maintain workers’ compensation coverage on all of its employees working or visiting the FTTA facility pursuant to applicable statutory requirements and limits.
13.4 Customer, on behalf of itself, its employees, agents, contractors and invitees, assumes all risks involved while at FTTA’s facility, including, without limitation, all risk of bodily injury, death, and property damage.
13.5 Each Party (the “Indemnifying Party”) agrees to indemnify and hold harmless the other Party, and its affiliates, including, without limitation, Aisin Holdings of America, Inc., (together with the directors, officers, employees, and agents of each, shall be referred to collectively as the “Indemnified Parties”) from and against any and all claims, demands, suits, actions, liabilities, judgments, losses, cost and other expenses (including, without limitation, reasonable attorneys’ fees) incurred by Indemnified Party as a result of or directly connected with breach of any of the terms of this Agreement by the Indemnifying Party, any negligent act or failure to act by the Indemnifying Party or any agent, employee, guest, or representative of the Indemnifying Party, or any attempt to hold such Indemnified Party responsible for any matters for which one Party has agreed the other Party is not responsible.
13.6 Anything in this Agreement to the contrary notwithstanding, FTTA and Customer each hereby waives any and all right of recovery (including, without limitation, subrogation claims by the waiving Party’s insurance carrier), claim, action or cause of action, against the other and its agents, employees, and representatives, for any loss or damage that may occur at, or related to, the FTTA facility, against which the waiving Party is required to insure pursuant to this Agreement, including negligence of the other Party or its agents, employees, or representatives, and each hereby covenants that no insurer shall hold any right of subrogation against the other Party by reason thereof; provided, however, that the provisions of this Section shall not apply to any deductible under any insurance required to be carried by FTTA or Customer under this Agreement or to any liability in excess of the required insurance coverage.
Article 14 – Term of This Agreement
14.1 This Agreement shall become effective as of the Effective Date first above written and shall be automatically renewed for successive terms of one (1) year each, unless either Party provides written notice at least sixty (60) days in advance of its intent not to renew this Agreement.
Article 15 – Termination
15.1 This Agreement shall terminate without further notice if;
(1) a written agreement of termination of this Agreement is duly executed between the Parties;
(2) either Party is dissolved;
(3) either Party is acquired by another Party or substantially all of the assets of either Party or of the relevant business of either Party are sold;
(4) the application by the Party for or the consent to the appointment of a receiver;
(5) the inability or the admission in writing of the inability by either Party to pay debts as they mature;
(6) a general assignment by either Party for the benefit of creditors;
(7) the adjudication that either Party is bankrupt or insolvent;
(8) a petition is made by either Party seeking reorganization or an arrangement with creditors, or
(9) corporate action is taken by either Party to affect any of the foregoing (2) through (8).
Article 16 – Severability
16.1 In the event that any provision of this Agreement becomes void and/or unenforceable under applicable law, then only such provision or the portion of such provision concerned shall be deemed void and/or unenforceable. The remaining provisions of this Agreement shall continue to bind the Parties hereto with full force and effect as if the void or invalid provision had never been in this Agreement. If necessary, however, the Parties shall confer and agree upon an effective provision to take the place of the void and/or unenforceable provision.
Article 17 – Arbitration
17.1 In the event of a dispute between FTTA and Customer arising out of this Agreement or a breach thereof, the Parties shall make a good faith effort to settle the dispute through negotiation.
17.2 If after such negotiations between Parties, any issue remains unresolved to the satisfaction of all Parties, the matter may be submitted by either Party hereto to binding arbitration.
17.3 All such unresolved disputes or controversies shall be finally settled by arbitration under the prevailing rules of the American Arbitration Association in the State of Michigan.
17.4 The decision resulting from such arbitration (including any award) shall be final and binding on Both Parties, and judgment may be entered to enforce such award in any court having jurisdiction over the parties.
17.5 Advertising Claims. Customer may not claim in any manner that the Testing Services or test data provided by FTTA to Customer constitute endorsement by FTTA of Customer’s product, nor may FTTA’s name be used in any advertising or promotional material of Customer.
17.6 Force Majeure. Neither Party shall be liable for delays and/or failures in its performance under this Agreement due to causes beyond its control and without its fault or negligence including, but without limiting the generality of the foregoing, acts of God, or the public enemy, fire or explosion, flood, action of the elements, war, riots, embargoes, strikes, lockouts, disputes with workmen or other labor disturbances, or acts or requests of any governmental authority.
Any such notices shall be given by hand, recognized overnight or express delivery service, facsimile or email (receipt confirmed), or US Mail (certified/return receipt requested). Notices shall be deemed to have been given upon delivery by hand, facsimile or email (receipt confirmed), or recognized overnight or express delivery service, or five days following the mailing of such notice by US Mail.
Article 18 – Modification of This Agreement
18.1 This Agreement may only be modified or amended by an express writing, duly signed by the authorized representatives of each of the Parties.