GENERAL Terms and Conditions

DEFINITIONS
  1. “Supplier” means xLM Solutions LLC, the Supplier identified in the attached Description of Services.
  2. “Client” means the customer who has signed the Description of Services included and attached to these terms and conditions.
  3. “xLM Solutions LLC” means xLM Solutions, LLC, a US limited liability company with its principal place of business at 6689 Orchard Lake Road, #112, West Bloomfield, MI 48322 USA and any legal entity of which more than fifty per cent (50%) of its ownership interest is owned or controlled, directly or indirectly by xLM Solutions, LLC.
  4. “xLM Group Materials” means all materials other than xLM Deliverables, provided by Supplier under a Description of Services , such as training manuals, self study guides and documentation whether in machine readable form or not.
  5. “xLM Group Software” designates any software owned or developed by xLM Solutions LLC.
  6. “Services” designates any training, technical assistance, consulting, software installation, configuration and parameter set-up to be performed by Supplier or a Supplier’s subcontractor. Creation of software programs exclusively related to Client’s tailor-made tools, is included within the scope of these General Terms and Conditions.
  7. “xLM Deliverables” designates customized materials or software code prepared specifically for Client (excluding development on xLM Group Software and development requiring access to xLM Group Software source code) prepared by Supplier and specifical
  8. “Description of Services” designates the document signed by Client and Supplier describing the Services, xLM Deliverables and xLM Group Materials to be delivered and the price and payment schedule.
  9. “Agreement” means this document “General Terms and Conditions”, together with signed Description of Services and any fully executed amendments thereto.
SERVICES
  1. Supplier will furnish Services, xLM Deliverables and xLM Group Materials to Client as set forth in Description of Services. The following order of precedence shall control in the event of any conflict in terms and conditions: (1) this document and (2) the Description of Services. Any purchase order issued by Client is for the limited purpose of internal accounting and shall not in any way modify or supplement the terms of these General Terms and Conditions.
  2. The Description of Services must be signed by an authorized representative of each party to become effective.

CONFIDENTIAL INFORMATION

  1. Client and Supplier may need to disclose Confidential Information during the performance ofthe Services. Confidential Information shall designate sensitive information which may include technical data, financial, business information or any other information which is considered as confidential by the disclosing party.
  2. Confidential Information shall be disclosed either: (a) in writing and conspicuously marked “Disclosing Party Confidential”; or (b) orally, visually or by delivery of non-tangible items, which is identified as Confidential Information at the time of disclosure and confirmed in writing within fifteen days of disclosure.
  3. For a period of three (3) years from the date of receipt of Confidential Information, the receiving party will implement the following steps: (a) USE AT LEAST THE SAME DEGREE OF CARE THAT IT USES WITH RESPECT TO ITS OWN CONFIDENTIAL INFORMATION, BUT IN NO EVENT LESS THAN A REASONABLE DEGREE OF CARE TO AVOID DISCLOSURE OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION ; (b) disclose Confidential Information only to Client and xLM Solutions, LLC personnel and that of its subcontractors who have a need to know for the performance of the Services; (c) promptly report any loss of any Confidential Information to the disclosing party.
  4. The receiving party may make a reasonable number of copies of tangible materials provided by the disclosing party and containing Confidential Information as necessary for the performance of the Services.
  5. The obligations of confidence in this Agreement will not apply to any information that: (a) is already in the possession of the receiving party without any obligation of confidence; (b) is independently developed by the receiving party without reference to Confidential Information of
    the disclosing party ; (c) is or becomes publicly available without breach
    of confidentiality obligations; or (d) is required to be disclosed in accordance with a judicial or governmental order or decree.
INTELLECTUAL PROPERTY RIGHTS
  1. xLM Deliverables – Upon payment of the applicable fees, Supplier shall grant to Client an irrevocable, world-wide, non-transferable and non-exclusive license to use, copy and modify xLM Deliverables for its own internal purposes only.
  2. xLM Group Materials – Upon payment of the applicable fees, Supplier shall grant to Client an irrevocable, worldwide, non-transferable and nonexclusive license to use such xLM Group Materials for its own internal purposes only. No right is granted to: (1) adapt, copy, distribute or modify such xLM Group Materials or prepare derivative works based upon such xLM Group Materials or (2) authorize others to do any, some, or all of the foregoing,, unless Client obtains Supplier’s prior written permission through an amendment of these General Terms and Conditions.
  3. Supplier shall have and retain exclusive ownership of (i) any inventions, discoveries,innovations, improvements, ideas, techniques or know- how conceived by Supplier during the performance of the Services (ii) xLM Deliverables and (iii) xLM Group Materials. This ownership includes the right to obtain, and hold in its own name copyrights, registrations, and
    similar protection which may be available for such items.
  4. Except as expressly provided herein, these General Terms and Conditions do not grant or convey either directly, by implication or otherwise, any right or license to any invention, patent,copyright or other intellectual property of either party to the other party.
WARRANTIES AND LIMITATION OF LIABILITY
  1. Supplier warrants that the Services, xLM Deliverables and xLM Group Materials that Supplier provides Client, shall for three (3) months from the date of delivery to Client, materially conform as described in the Description of Services, subject to the terms of this Article. Supplier does not however warrant or represent that Services, xLM Deliverables or xLM Group Materials will be error free. Supplier is not responsible for (i) any modification of a xLM Deliverable made by Client or a third party without Supplier’s consent; or (ii) any use of a xLM Deliverable in combination with items not provided by Supplier. In the event of a noncompliance with this three (3) month warranty, Supplier shall promptly correct, replace, or modify the applicable Service, xLM Deliverable or xLM Group Material without charge. If Supplier fails to correct the noncomplying portion of the applicable Service, xLM Deliverable or xLM Group Material, Supplier shall refund Client all fees paid to Supplier in connection with the rejected portion of the applicable Service, xLM Deliverable or xLM Group Material within thirty (30) days from the date of rejection notice to Supplier.
  2. Unless expressly provided in the Description of Services, Supplier shall have no obligation to support, maintain or enhance any computer software, documentation, or materials provided to Client under these General Terms and Conditions.
  3. Any written or oral statements concerning results or goals that may be attained during the performance of the Services and all surveys, forecasts, recommendations and opinions contained in any proposal, report, presentation, xLM Deliverables or xLM Group Material are made on the basis of then current information available to Supplier, including, but not limited to, information provided by Client. Under no circumstances shall any such statement be deemed or construed as a representation, undertaking or warranty, whether express or implied, of achievable results or goals.
  4. Supplier warrants that it, and not Client, is responsible for the employer/employee relationship with its personnel assigned to provide Services and that it shall pay all related employment taxes, maintain any legally required employment-related insurance and take all other actions legally required as an employer.
  5. THE WARRANTY DESCRIBED IN THIS ARTICLE IS EXCLUSIVE AND CLIENT HEREBY WAIVES ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
  6. EXCEPT FOR CLAIMS ARISING OUT OF OR RELATED TO BODILY INJURY, INCLUDING DEATH AND DAMAGE TO THIRD PARTY TANGIBLE PROPERTY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR LOSS OF DATA) IN ANY WAY ARISING OUT OF THESE GENERAL TERMS AND CONDITIONS OR THE DESCRIPTION OF SERVICES OR PERFORMANCE THEREUNDER, HOWEVER CAUSED, UNDER A CLAIM OF ANY TYPE OR NATURE, BASED ON ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT OR STRICT LIABILITY) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SUPPLIER’S LIABILITY FOR OTHER DAMAGES TO CLIENT EXCEED THE CHARGES PAID OR PAYABLE FOR THE SERVICE, xLM DELIVERABLE OR xLM GROUP MATERIAL INVOLVED IN THE DAMAGE.
  7. Client recognizes that the charges and fees hereunder are based in part on the limited warranty and limitation of liability set forth above.
SUPPLIER PERSONNEL AND TRAVEL TIME
  1. Personnel provided by Supplier to perform Services will not for any purpose be considered employees of Client. Supplier shall be responsible for their supervision, daily direction and control, as well as payment of salary and benefits, including applicable employment taxes.
  2. Supplier shall be entitled to (a) determine the assignment of Supplier personnel for performance of the Services, (b) replace or reassign such personnel or (c) subcontract with qualified third persons, including but not limited to any xLM Group Supplier, for part or all of the performance of the Services. No person performing Services on behalf of Supplier hereunder shall be restricted or prevented from performing services for others that are similar to the Services provided under these General Terms and Conditions.
  3. Travel time during normal business hours will be charged (on a portal-to-portal basis) as time worked. Supplier may charge for significant travel time outside normal business hours, with prior notice to Client.
CLIENT RESPONSIBILITIES
  1. As a condition of Supplier’s performance of Services, Client shall perform certain tasks specified in the Description of Services at no charge to Supplier.
  2. Client shall reasonably cooperate with Supplier in performing the Services, including providing Supplier with safe and timely access to Client’s computer systems, personnel (executives and staff), facilities, utilities, any software program, data and information reasonably necessary for the performance of Services, whether or not defined in the Description of Services , at no charge to Supplier. Client shall ensure that it has the appropriate licenses from third parties licensors for such third party’s software programs, third party data and information in order to allow Supplier to perform the Services for the Client. Client is responsible for the accuracy and completeness of the information and data Client supplies to Supplier for use hereunder and Client hereby licenses Supplier to use such information and data to perform the Services.
  3. While Supplier will use reasonable efforts to interpret Client needs, Supplier is dependent upon Client for the accurate and complete provision of data. Client is responsible for evaluating Supplier’s proposal based upon those technical, price, performance and risk factors determined by Client to be in its best interests. Client must satisfy itself that Supplier fully understands Client’s requirements and that Supplier’s proposal addresses the Client’s needs.
  4. Client shall maintain current and complete back up for any data and programs that may be affected by Supplier’ performance of Services.
  5. Client shall indemnify, defend and hold Supplier harmless from any action brought against Supplier based on a claim that any materials or information provided by Client to Supplier constitute an infringement of a third party’s patents, copyrights or trademarks, or a misuse of a third party’s confidential, proprietary or trade secret information.
PAYMENT
  1. Supplier will submit invoices to Client in accordance with the Description of Services . Payment shall be due within thirty (30) days from the date of the invoice. Client shall pay interest on late payments at a rate of two percent (2%) per month, but in no event more than the highest amount allowed by applicable law, on all sums unpaid at the due date, plus reasonable attorney’s fees and costs incurred by Supplier in collecting unpaid amounts and in enforcing these General Terms and Conditions.
  2. Client shall reimburse Supplier for all reasonable travel and living expenses incurred by Supplier personnel in the performance of the Services.
  3. Client shall pay, without recourse to Supplier, amounts equal to any taxes, howsoever designated, assessed or levied relating to these General Terms and Conditions or the services or materials provided hereunder, excluding taxes based on Supplier’s net income.
TERM AND TERMINATION
  1. These General Terms and Conditions shall become effective as of the first day of performance of the Services and shall continue in effect until the Agreement is terminated in accordance with its provisions.
  2. Supplier will be paid for Services performed through the date of termination, reasonable subcontractor termination charges, if any, and any other costs and expenses that Supplier has paid or is obligated to pay relating to its performance for the term of the Services. Such payment shall constitute Client’s entire liability in case of any such termination.
  3. Either party may terminate the Services for default by providing thirty (30) days prior written notice to the other party unless such default is capable of being cured and the default is cured within the thirty (30) day period. In the event of termination of the Services by Client for Supplier default, and if the default is not remedied within said thirty (30) day period, Supplier agrees to promptly provide Client with all items of work in progress associated with the Services upon payment by Client of any amounts owed.
  4. The rights and obligations of Sections 3, 4, 5, 7, 8, 9, 10 and 11 shall continue after expiration or termination of these General Terms and Conditions and shall bind the parties and their legal representatives, successors and assigns.
GENERAL
  1. Neither party shall be liable for failure to perform its obligations hereunder, if such failure results from causes beyond its reasonable control such as acts of God, fire, explosion, terrorism, strikes or labor disputes, delays by vendors and/or manufacturers, governmental acts, staff unavailability due to illness or airline flight delay or similar causes.
  2. These General Terms and Conditions shall not prevent either party from entering into similar agreements with others or from independently developing or acquiring materials or services that are similar to those provided under these General Terms and Conditions.
  3. Supplier shall have the right to subcontract part or all of the Services as long as Supplier remains liable to Client for the performance of its obligations hereunder.
  4. Except for Supplier’s right to subcontract Services pursuant to Section
  5. neither party shall assign, delegate or otherwise transfer any right or obligation hereunder without the prior written consent of the other party. Any transfer through merger or acquisition does not require consent.
  6. Nothing contained herein shall be deemed to authorize or empower either party to act as agent for the other party or to conduct business in the name of such other party. Nothing in these General Terms and Conditions shall be deemed to create between the parties hereto any jointventure or partnership.
  7. Neither party will recruit or solicit any employee of the other party whose identity was made known to the party by providing the Services without the prior written consent from the other party for a period of up to six (6) months following the end of the assignment of such party’s employee to the Services. Nothing in this provision will be interpreted as a restriction against responses to general advertisements placed in the media.
  8. Failure of either party to require strict performance by the other party of any provision shall not affect the first party’s right to require strict performance thereafter. Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach.
  9. In the event any part of these General Terms and Conditions is invalid, illegal or unenforceable, the remaining provisions of these General Terms and Conditions shall nevertheless be binding with the same effect as if the invalid, illegal or unenforceable part was never part of these General Terms and Conditions.
  10. Unless provided for in a separate agreement, the parties shall not disclose or exchange any information that is subject to the United States Government’s International Traffic in Arms Regulations (ITAR). Client will only export or reexport any information and technology received under a Description of Services subject to these General Terms and Conditions, in compliance with applicable export control laws and regulations.
  11. These General Terms and Conditions are the complete agreement between the parties relating to the subject matter hereof and supersede all prior proposals, agreements, understandings, representations and communications, whether oral or written. These General Terms and Conditions may be modified only by written amendment signed by the parties’ duly authorized representatives.
APPLICABLE LAW
  1. These General Terms and Conditions shall be governed by and construed, and the legal relations between the parties shall be determined in accordance with the laws of the State of Michigan, excluding application of any conflict of laws principles and the parties irrevocably waive all rights to trial by jury for any litigation between them related to this Agreement.
  2. In the event of a dispute concerning the execution, construction of interpretation of these General Terms and Conditions, the parties shall meet to seek an amicable solution to the problem. Where no solution can be found within three (3) months, each party hereby consents that all actions and proceedings arising out of or relating to this Agreement shall be exclusively heard and determined in a state court located in Oakland County, Michigan or a federal court of competent jurisdiction located in the Eastern District of the State of Michigan.

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