This agreement (the Agreement) is made and entered into by and between Client and MEDUSA Radiometrics BV (hereafter referred to as MEDUSA). In consideration of the mutual covenants made herein, the parties agree as follows:

1. DEFINITIONS:

The following capitalized terms, when used in this Agreement, shall have the meanings ascribed to them in this Section:

  1. "Product" shall mean the electronic hardware, printed circuit boards, embedded firmware and software to be developed by MEDUSA pursuant to this Agreement in accordance with the Specifications, together with user manuals, other documentation and any other ancillary materials to be developed by MEDUSA pursuant hereto.
  2. "Order form" shall mean the "Work"assignment defined in a design document attached to this contract
  3. "Specifications" shall mean the specifications for the Product as directed by Client, together with any additional specifications or modifications to the specifications that may be agreed to in writing by the parties during the term of this Agreement.
  4. "Intellectual Property" shall mean all intellectual property other than the Technology owned by MEDUSA prior to the Effective Date or licensed to MEDUSA by a third party, and used in the development of the Product. Other capitalized terms shall have the meanings ascribed to them in the body of this Agreement.

2. TERMS AND CONDITIONS:

2.1. DEVELOPMENT OF THE PRODUCT

Client hereby retains MEDUSA to design and develop, and MEDUSA hereby agrees to design and develop the Product in accordance with (1) the project outline set forth on the delivered Scope of Work and/or (2) the Product Specifications developed jointly by Client and MEDUSA. The parties shall work together in a joint effort to accomplish the tasks and objectives set forth in the Product Specifications. MEDUSA shall be responsible for delivering and performing only those professional services specifically identified in the Product Specifications. Any modifications to the Product Specifications shall be pursuant to the Change Order process set forth below.

2.2. CHANGE ORDERS

In the event Client desires to make any modifications to the Product Specifications or a deliverable, Client must provide a detailed change order in writing. This may be provided in the form of email, certified letter, or via technologies and/or tools provided by MEDUSA. In the event of a conflict between the terms of this Agreement and a Change Order, the terms of this Agreement shall govern.

2.3. SUPPORT AND MAINTENANCE

Any support and maintenance services, updates, versions, or new releases shall be contracted under a separate agreement between MEDUSA and Client. Maintenance and support rights or obligations for any third party products or equipment that are used in the Product and are available through the respective vendor(s)/manufacture(s) of such content and equipment shall be assigned by MEDUSA to Client. MEDUSA shall not use any intellectual property of any third-party in the Product without Client's written consent. 

2.4. CLIENT RESPONSIBILITIES

Client agrees to perform all tasks assigned to Client as set forth in this Agreement, the Product Specifications, or a Change Order, and to provide all assistance and cooperation to MEDUSA in order to complete timely and efficiently the Product. MEDUSA shall not be deemed in breach of this Agreement, the Product Specifications, a Change Order, or any milestone in the event MEDUSA's failure to meet its responsibilities and time schedules is caused by Client's failure to meet (or delay in) its responsibilities and time schedules set forth in the System Specifications, a Change Order, or this Agreement. In the event of any such failure or delay by Client, (i) all of MEDUSA's time frames, milestones, and/or deadlines shall be extended by the product of the number of days of Client's failure multiplied by two (2); and (ii) Client shall continue to make timely payments to MEDUSA as set forth in this Agreement, the Product Specifications, and any Change Order(s) as if all time frames, schedules, or deadlines had been completed by MEDUSA. Client shall be responsible for making, at its own expense, any changes or additions to Client's current systems, software, and hardware that may be required to support operation of the Product. Unless otherwise contracted with MEDUSA or reflected in a Change Order, Client shall be responsible for initially populating and then maintaining any databases on the Product as well as providing all content for the Product. With the execution of a Change Order specifically asking MEDUSA to assesses the Client's systems, software and hardware from time to time, MEDUSA may agree to perform this function at normal MEDUSA rates.

2.5. PROJECT MANAGERS

Client and MEDUSA shall assign a Project Manager for managing the implementation of the Product. The Project Managers shall be responsible for: (i) managing the day-today activities under this Agreement, (ii) serving as liaisons between the parties, (iii) assigning and scheduling the appropriate personnel to perform all of the required services under this Agreement, and (iv) authorizing and executing any and all Change Order(s). Client hereby acknowledges and agrees that the Client Project Manager shall have the proper authority and power to execute and perform the duties and responsibilities set forth in this Section. MEDUSA hereby acknowledges and agrees that the MEDUSA Project Manager shall have the proper authority and power to execute and perform the duties and responsibilities set forth in this Section.

2.6. SUBCONTRACTORS

MEDUSA reserves the right, and Client hereby agrees, to assign subcontractors to this project to insure that the terms of this agreement are met as well as on-time completion.

2.7. MARKETING

Client hereby grants MEDUSA the right to use the name and service marks of Client in its marketing materials or other oral, electronic, or written promotions, which shall include naming Client as a client of MEDUSA and a brief scope of services provided. Any use of MEDUSA logos or links on Client's Product must be approved in writing by Client. Either party may elect to issue a press release related to this Agreement. In doing so, any release shall be approved by the other party and such approval shall not be unreasonably withheld.

3. COMPENSATION

Client agrees to pay MEDUSA according to the payment terms defined in the order form. If the parameters of the Work changes, MEDUSA will inform Client and the parties can discuss and agree upon any additional charges. MEDUSA shall invoice Client at the ending of every month for the work completed in that month, unless otherwise agreed. MEDUSA is responsible for the payment of all federal, state and/or local taxes with respect to the services it performs for the client as an independent contractor. The Client will not treat MEDUSA, or any of its employees, as an employee for any purpose.

3.1. PAYMENT

Unless otherwise specified in writing, invoices not paid within 30 days of the invoice date will accrue interest at 1.5% per month. MEDUSA may suspend all services on fifteen (15) days written notice until the amounts outstanding are paid in full.


4. INTELLECTUAL PROPERTY RIGHTS AND LICENSE

4.1. PRODUCT

All materials, including, but not limited to, schematics, PCB layouts, firmware, software, programs, source code and object code, comments to the source or object code, specifications, documents, abstracts and summaries thereof (collectively, the “Products”) developed by MEDUSA in connection with the provision of the Services to Client, or jointly by Client and MEDUSA, or by MEDUSA pursuant to specifications or instructions provided by Client, shall belong exclusively to Client. MEDUSA acknowledges that the Products shall be deemed “works made for hire” by MEDUSA for Client, and, therefore, shall be the exclusive property of Client. To the extent the Products are not deemed “works made for hire” under applicable law, MEDUSA hereby irrevocably assigns and transfers to Client all right, title and interest in and to the Products, including, without limitation, all patent and copyright interests, and agrees to execute all documents reasonably requested by Client for the purpose of applying for and obtaining domestic and foreign patent and copyright registrations.

4.2. PRE-EXISTING INTELLECTUAL PROPERTY

Notwithstanding any provision of this Agreement to the contrary, any hardware designs, software routines, firmware routines, methodologies, processes, software libraries, tools or technologies created, adapted or used by MEDUSA in its business generally, including all associated intellectual property rights (collectively, the “Development Tools”), shall be and remain the sole property of MEDUSA, and Customer shall have no interest in or claim to the Development Tools, except as necessary to exercise its rights in the Product. In addition, notwithstanding any provision of this Agreement to the contrary, MEDUSA shall be free to use any ideas, concepts, or know-how developed or acquired by MEDUSA during the performance of this Agreement to the extent obtained and retained by MEDUSA’s personnel as impression and general learning. Subject to and limited by Client’s intellectual property rights described in Section 4.1 above, nothing in this Agreement shall be construed to preclude MEDUSA from using the Development Tools for use with third parties for the benefit of MEDUSA.

4.3. THIRD PARTY LICENSES

In addition to any other fees set forth in this Agreement, Client shall be required to purchase any applicable third party licenses for any third party products that are necessary for MEDUSA to design and develop the Product. Such third party products may include, but are not limited to: embedded software compliers, product specific development hardware or any other copyrighted work which MEDUSA deems necessary to purchase on behalf of Client to design and develop the Product. In the event any such third party product exceeds EUR 500.00 per product, MEDUSA shall obtain Client's prior written consent before incorporating such third party product into the Product. MEDUSA shall provide Client with a list of all third party products upon launch of the Product.

5. TERM AND TERMINATION:

5.1. TERM

This Agreement shall be effective as of the Effective Date and shall continue in effect until complete payment of the Development Price or until earlier terminated as provided in this Agreement or until the contracted services as outlined in the Order Form have been completed.

5.2. TERMINATION FOR CAUSE:

This Agreement may be terminated by either party upon written notice to the other, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice.

5.3. EFFECT OF TERMINATION

Client shall pay MEDUSA for all services rendered and work performed up to the effective date of termination for any reason subject to Client's rights to only pay fair value if Client terminates for cause. MEDUSA shall provide Client with an invoice for the foregoing fees within thirty (30) days of the effective date of the termination. Client shall pay the invoice within thirty (30) days of receipt.

5.4. RETURN OF PROPRIETARY OR CONFIDENTIAL INFORMATION

Within ten (10)days after the termination or expiration of this Agreement, each party shall return to the other all Proprietary or Confidential Information of the other party (and any copies thereof) in the party's possession or, with the approval of the party, destroy all such Proprietary or Confidential Information. "Proprietary or Confidential Information" shall include, but is not limited to, written or oral contracts, trade secrets, know- how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process.

6. WARRANTIES:

6.1. PRODUCT

MEDUSA warrants that for a period of ninety (90) days from launch of the Product, the Product will operate in accordance with all the material terms of the Product Specifications. All warranty claims not made in writing within such period shall be deemed waived. As the sole and exclusive remedy of Client for breach of the foregoing warranty, MEDUSA shall, at its option, either correct the nonconformity or refund to Client the dollar amount attributable to the number of actual hours MEDUSA spent developing the defective portion of the Product. MEDUSA shall not be liable for any prototypes, manufactured production product, product inventory or tooling purchased by Client that may hold this defect. MEDUSA shall not be liable for failures caused by third party hardware or software (including Client's own systems), misuse of the Product, or the negligence or willful misconduct of Client.

6.2. PERFORMANCE OF PROFESSIONAL SERVICES:

MEDUSA warrants that the professional services will be performed in a workmanlike and professional manner by appropriately qualified personnel.

Notwithstanding the above, Client's exclusive remedies for all damages, losses, and causes of actions whether in contract, tort including negligence or otherwise, shall not exceed the aggregate the amount which Client paid during the term of this Agreement.

7. LIMITATION OF LIABILITY

Under no circumstances shall MEDUSA, its contracted providers, officers, agents, or anyone else involved in creating, producing, or distributing Client's Product be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the Product; or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access to Client's records, programs or services. Client hereby acknowledges that this paragraph shall apply to all content on said Hosting Service. THE TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) TO THE OTHER SHALL NOT EXCEED THE DEVELOPMENT PRICE. THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL IN THEIR ESSENTIAL PURPOSE.

8. THIRD PARTY DISCLAIMER

MEDUSA MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.

9. INDEMNIFICATION

Client agrees to indemnify MEDUSA, its employees, agents, representatives and suppliers from and against any and all liability, claims, damages and other expenses (including attorneys’ fees, court costs and litigation expenses) arising out of or relating to any claim or action, regardless of form, concerning any breach of this Agreement by Client, any acts or omissions by Client relating to Client’s performance under this Agreement, and any claim of third parties arising out of this Agreement or the sale of services hereunder. Client will also indemnify, defend and hold Enhance harmless from any claim that the product designed from the services hereunder violate any patent or proprietary rights of a third party. It is the Client’s responsibility to pursue patent, copyright or other proprietary rights protection.

10. CONFIDENTIALITY

The parties agree to hold each other's Proprietary or Confidential Information in strict confidence. The parties agree not to make each other's Proprietary or Confidential Information available in any form to any third party or to use each other's Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party's Proprietary or Confidential Information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, MEDUSA and Client acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of two (2) years from the Effective Date.

11. FORCE MAJEURE

Except with regard to payment obligations, either party shall be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of the party, including, but not limited to: default of subcontractors or suppliers; failures or default of third party software, vendors, or products; acts of God or of the public enemy; Dutch or foreign governmental actions; strikes; communications, network/internet connection, or utility interruption or failure; fire; flood; epidemic; and freight embargoes.

12. LEGAL

12.1. CHOICE OF LAW; VENUE; LIMITATION OF ACTIONS

This Agreement shall be governed and construed in accordance with the laws of The Netherlands, and the parties consent to the sole and exclusive jurisdiction of the Dutch courts for any dispute arising out of this Agreement. No action by MEDUSA or Client arising under this Agreement may be brought at any time more than one (1) years after the facts occurred upon which the cause of action arose.

12.2. DISPUTES

Client and MEDUSA agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration by the Dispute Resolution Foundation for Automation (SGOA.EU) in The Netherlands.

12.3. SEVERABILITY

In the event that a court finds any provision of this Agreement invalid and/or unenforceable, the parties agree that the remaining provisions shall remain valid and in force.

12.4. WAIVER

Neither party shall be deemed by mere lapse of time (without giving notice or taking other action hereunder) to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party shall not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.

12.5. SURVIVAL

The following provisions shall survive termination or expiration of this Agreement: Sections 3 (Compensation), 4 (Intellectual Property Rights and License), 5 (Term and Termination), 6 (Warranties), 7 (Limitation of Liability), 8 (Third Party Disclaimer), 9 (Indemnification) 10 (Confidentiality), 12.1 (Choice of Law; Venue; Limitation of Actions), 12.2 (Disputes), and 12.5 (Survival).

12.6. TRADEMARKS

The Client unconditionally warrants and guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to MEDUSA, Inc. and/or its assigns for inclusion in the Product are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify and defend MEDUSA, Inc. its assigns and its subcontractors from any liability (including attorney's fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the Client.

12.7. THIRD PARTY SOFTWARE

Additionally, in the event Client elects to install or seek assistance from MEDUSA in connection with the installation of any third-party software, the following terms shall apply. Client represents and warrants that Client has the right to use and install the third-party software, and have paid the applicable licensing fees for the third party software, and the third-party software does not and shall not infringe on the intellectual property rights of any other person or entity. Client agrees to defend, indemnify and hold harmless MEDUSA and its employees, officers and directors for, from and against any and all claims brought against MEDUSA and its employees, officers and directors by a third-party alleging the software infringes: (i) the third-party’s rights; or (ii) a patent, trademark, copyright or other intellectual property right. Client agree that in such an event Client shall pay all resulting costs, damages, expenses and reasonable attorneys’ fees that a court awards and settlements incurred by MEDUSA in connection with any such claims.

12.8. LAW AFFECTING ELECTRONIC COMMERCE

The client agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend MEDUSA and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the client’s use of Internet electronic commerce. 

12.9. ASSIGNMENT

Neither party may not assign this Agreement or any of its rights or obligations or the license hereunder, without the prior written consent of the other.

13. ENTIRE AGREEMENT

This Agreement and all exhibits, schedules, and Change Order(s) set forth the entire agreement between the parties with regard to the subject matter hereof. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this Agreement, except as referenced herein. This Agreement may be amended only by a written agreement signed by both parties.