Version 1.0, 6 August 2019
TESTING SERVICES AGREEMENT
The FieldComm Group Testing Services Agreement (“the “Agreement)” is made and entered into by and between you (“Client”) and FieldComm Group, a Delaware not-for-profit corporation having principal offices at 9430 Research Blvd., Suite 1-120, Austin, Texas, 78759, USA (“FCG”) The Agreement is effective as of the date Client clicks to accept the Agreement (“the Effective Date”).
A. FCG has established and developed certain FOUNDATION™ fieldbus, HART, WirelessHART and FDI technology and offers testing services to manufacturers to have their products incorporating such technology tested for interoperability (“Interoperability Testing”) and/or conformance (“Conformance Testing”).
B. Client desires to have Interoperability and/or Conformance Testing performed on certain of its products for its internal research and product development purposes, subject to the terms and conditions of this Agreement.
Therefore, the parties agree as follows:
1. TESTING SERVICES. FCG shall provide to Client the Interoperability and/or Conformance Testing (the “Services”) to test the Client’s products (“Products”) identified on the testing services application order. Services may be performed by employees of FCG or by a third party contracted by FCG (“Contractor”). All Services shall be completed within thirty (30) days of the first day of testing unless extended by FCG. In order to perform the Services, FCG requires certain information about the Products and Client, which depends on the type of Services to be performed and must be submitted in certain formats specified by FCG. Until FCG receives all requested information, it is under no obligation to perform the Services.
2. PERFORMANCE OF SERVICES. FCG may perform the Services at its principal office listed above or at the facilities of Contractor at a scheduled time that is mutually agreeable to the parties. FCG or Contractor shall provide all equipment and software needed to perform the Services, subject to the condition that Client must deliver, at its own expense, all Products to FCG at such office in a condition suitable for testing no later than one (1) business day prior to the scheduled testing date. If Client fails to deliver the Products in such condition to FCG in a timely manner, FCG reserves the right to change the testing date in its sole discretion.
3. TESTING RESULTS. FCG shall determine, in its sole judgment, whether the Products pass or fail the Interoperability and/or Conformance Testing, and FCG shall inform Client of such results in writing within a reasonable time after completion thereof. If FCG deems the Products pass Interoperability and/or Conformance Testing and, in FCG's judgment, Client has complied with all other FCG requirements, FCG shall invite Client to enter into FCG's standard Registration Agreement (the "Registration Agreement"). Unless and until Client enters into the Registration Agreement, Client shall use the Interoperability and/or Conformance Testing results solely for internal research and product development purposes and shall not otherwise disclose the same to third parties. Without limiting the foregoing, regardless of the Interoperability or Conformance Testing results, Client shall not market or advertise the Products as having passed the Interoperability or Conformance Testing by FCG unless it has entered into the Registration Agreement. Under no circumstances shall Client market or advertise the Products as "certified" or otherwise "approved" by FCG, even after entering into a Registration Agreement.
4. CONSULTING SERVICES AND RETESTING. If any Product fails to pass Interoperability Testing and/or Conformance Testing, Client may request that FCG provide Client with consulting services concerning failures of such Product at FCG’s then-current rate (“Consulting Services”) and may resubmit such failing Product for additional Interoperability and/or Conformance Testing (“Retesting”). The scope and duration of such Consulting Services, if any, shall be set by mutual written agreement of the parties.
5. GRANT OF LICENSE TO FCG TO DISTRIBUTE CLIENT SOFTWARE.
FCG makes available to its members and the public software that has passed EDD, EDD/CF or FDI Package Testing (“FCG Distributable Software”). By submitting FCG Distributable Software for Services hereunder, Client hereby agrees as follows:
(a) Client grants to FCG a royalty free, worldwide non-exclusive license to use and otherwise distribute the FCG Distributable Software in the form submitted by Client to FCG through FCG’s Repository (the “Repository”) and via FCG’s public website (the “Public Library”) via the Internet for public download. This license is sublicensable by FCG to any person or entity downloading the FCG Distributable Software through the Repository or the Public Library. This license shall survive termination under Section 8(a) but may be terminated in accordance with Section 8(b).
(b) The parties agree that the FCG Distributable Software, and any and all right, interest, and title, including copyrights and trademarks therein, are and shall remain the property of Client, subject to the license granted hereunder. FCG agrees to distribute the FCG Distributable Software with the applicable copyright notice of Client.
6. RETURN OF PRODUCTS. The Products are and shall remain the Client’s property and are furnished to FCG solely for testing purposes and as set forth in Section 5. Client shall bear the sole risk of loss or damage to the Products during any shipment of the Products to or from FCG or Contractor. Upon the first to occur of (a) successful completion of Interoperability and/or Conformance Testing, (b) termination of this Agreement or (c) the written request of Client, FCG shall promptly return the Products to Client or Client’s designee at Client’s expense using Client’s return shipping account and shipping instructions. Client agrees to provide such shipper information to FCG within thirty (30) days upon the first to occur of (a), (b), or (c); otherwise, Products and associated accessories shall be considered to be abandoned by the Client. FCG shall destroy and recycle abandoned Products and accessories in a secure manner at the sole discretion of FCG.
7. PAYMENT. Client shall pay FCG its then-current fee for the Services and Consulting Services and Retesting, if any. The fee schedules for the Services, Retesting and Consulting Services as of the Effective Date are published on FCG’s public website at https://fieldcommgroup.org. FCG shall invoice Client monthly for any fees for Services, Retesting or Consulting Services performed during the prior month and any other related charges such as shipping. Client shall pay the applicable fees or charges no later than thirty (30) days after its receipt of an invoice therefor.
(a) This Agreement shall commence on the Effective Date and, except as provided in Section 8(b), shall terminate upon completion of the Interoperability and/or Conformance Testing (including any Retesting), report of the results of such testing and return of the Products to Client.
(b) This Agreement may be earlier terminated: (i) by mutual agreement of the parties; (ii) by either party upon written notice to the other party if the other party files a petition of any type as to its bankruptcy, is declared bankrupt, becomes insolvent, makes an assignment for the benefit of creditors, goes into liquidation or receivership, or otherwise loses legal control of its business involuntarily; (iii) by either party upon written notice to the other party if the other party is in material breach of this Agreement and has failed to cure such breach within thirty (30) days of receipt of written notice thereof from the first party; or (iv) by FCG pursuant to Section 10(b) below.
(c) Upon termination of this Agreement for any reason (i) FCG shall be entitled to payment for all Services, Retesting or Consulting Services performed prior to the effective date of termination and any related charges such as shipping, and (ii) Sections 9, 10 and 11 shall continue in full force and effect.
9. CONFIDENTIALITY. Each party acknowledges that it may have access to proprietary and/or confidential information (“Confidential Information”) of the other as a result of this Agreement. Without limiting the foregoing, Client’s Confidential Information shall include the design, specifications and performance characteristics of the Products, and FCG’s Confidential Information shall include the results of the Products in the Conformance and Interoperability Testing. Each party agrees that for the term of this Agreement and for a period of three (3) years thereafter it will not, without the prior written consent of the other party, directly or indirectly use any Confidential Information for its own benefit or divulge, disclose, or communicate in any manner any Confidential Information to any third party, except as may be permitted under this Agreement. A breach of this Section 9 shall be considered a material breach of this Agreement.
10. LIMITED WARRANTIES.
(a) FCG warrants that the Interoperability and/or Conformance Testing will be performed in a good and workmanlike manner on properly functioning testing equipment. FCG SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS AND IMPLIED.
(b) Client shall notify FCG in the event it reasonably suspects a breach of the limited warranty contained in Section 10(a). In the event that FCG determines that performance of the Services did not comply with the limited warranty in Section 10(a), FCG shall, in its discretion, (i) retest the Products in a good and workmanlike manner using properly functioning testing equipment, at no additional charge to Client, or (ii) refund the testing fees paid to FCG by Client and terminate this Agreement upon notice to Client, in either case with no further liability or obligation to Client. THIS SECTION 10(b) CONTAINS CLIENT’S SOLE REMEDIES IN THE EVENT OF A BREACH OF THE LIMITED WARRANTY CONTAINED IN SECTION 9(a).
(c) CLIENT UNDERSTANDS AND ACKNOWLEDGES THAT FCG’S DETERMINATION THAT A PRODUCT HAS SUCCESSFULLY COMPLETED INTEROPERABILITY TESTING DOES NOT IMPLY ENDORSEMENT, CERTIFICATION OR WARRANTY OF SUCH PRODUCTS OR CLIENT BY FCG, OR THAT THE PRODUCTS WILL PROVIDE INTEROPERABILITY OUTSIDE OF FCG’S TESTING ENVIRONMENT, AND CLIENT SHALL NOT SO IMPLY OR REPRESENT, DIRECTLY OR INDIRECTLY, TO ANY THIRD PARTY.
(d) The limited warranty and remedies contained in this Section 10 are made solely to Client and may not be passed on to, or relied on by, any third party.
(e) Client hereby represents and warrants to FCG that: (1) Client has the right to enter into this Agreement and is the owner of, or has the right to enter into this Agreement on behalf of the owner of, all right, title and interest, including copyright, if any, in and to the Products; (2) the use of the Products as authorized in this Agreement does not infringe or misappropriate any right of any third person or entity; and (3) the Products have been developed using generally accepted engineering practices, have been tested by Client, operate as intended and are free and clear of any and all anomalies, viruses or malware.
11. DISCLAIMER OF LIABILITY. FCG SHALL NOT BE LIABLE FOR ANY DELAY IN ITS PERFORMANCE UNDER THIS AGREEMENT. EXCEPT AS EXPRESSLY STATED IN SECTION 9(b), FCG SHALL NOT BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT OR OTHERWISE, TO CLIENT OR ANY OTHER PERSON CLAIMING THROUGH OR UNDER CLIENT FOR ANY DAMAGES OR EXPENSE, WHETHER CONSEQUENTIAL OR INCIDENTAL, DIRECT OR INDIRECT, SPECIAL OR GENERAL AND HOWEVER CAUSED, EVEN THOUGH FCG MAY HAVE BEEN ADVISED OR MAY OTHERWISE HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT ANY LIABILITY IS IMPOSED ON FCG FOR ANY REASON WHATSOEVER, THE AGGREGATE AMOUNTS PAYABLE BY FCG SHALL NOT EXCEED THE ACTUAL AMOUNT PAID BY CLIENT TO FCG HEREUNDER. NOTHING CONTAINED HEREIN SHALL MAKE FCG LIABLE FOR LOSS OR DAMAGE TO THE BUSINESS OF CLIENT, INCLUDING ANY CLAIM AS TO BREACH OF CONTRACT, LOST RECEIPTS OR PROFITS, LOSS OF USE, BUSINESS INTERRUPTIONS OR ANY OTHER TANGIBLE OR INTANGIBLE BUSINESS LOSS. CLIENT ACKNOWLEDGES THAT THE ALLOCATION OF RISKS AND BENEFITS UNDER THIS AGREEMENT IS BASED ON, AND THE FEES UNDER THIS AGREEMENT WOULD BE GREATER IN THE ABSENCE OF, THE LIMITATIONS DESCRIBED ABOVE.
12. INDEMNIFICATION. Client hereby indemnifies and holds harmless FCG against any claims, losses, damages and expenses whatsoever, incurred by FCG (including its reasonable attorney’s fees) arising from or related to (a) any action or omission by Client, its employees and agents that has the effect of representing or implying that FCG endorses, certifies or warrants the Products in material breach of Section 3 or Section 9(c) of this Agreement, (b) any third party claims (including, without limitation, claims for person injury or property damages) relating to design, manufacture, sale, lease, transfer or use of the Products, or (c) any other material breach by Client, its employees or agents of the terms, conditions, representations or warranties of this Agreement.
13. ASSIGNMENT. Neither party may assign or otherwise transfer its rights and obligations under this Agreement except with the prior written consent of the other party; provided, however, either party may assign any or all of its rights and obligations hereunder to any of its subsidiaries, provided that the assigning party shall remain fully liable for the performance of all its obligations hereunder; and further provided that a successor in interest by merger, by operation of law, assignment, purchase or otherwise of all or substantially all the business of a party may acquire its rights and obligations hereunder. Any prohibited assignment shall be null and void.
14. EXPORT CONTROL. By submitting a Product to FCG, Client is warranting that the Products is not subject to any export control restriction that would prohibit FCG from using a Contractor outside the United States that is not in a country embargoed by the United States. If Client wishes to submit a Product that is subject to United States export control restrictions, it should contact FCG to discuss options for testing that Product.
15. RELATIONSHIP OF PARTIES. This Agreement does not make either party the employee, agent or legal representative of the other for any purpose whatsoever. Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party. Each party is acting as an independent contractor.
16. NOTICES. All notices required or permitted under this Agreement shall be in writing and shall be deemed delivered when delivered in person or deposited in the United States mail, postage prepaid, addressed to the other party’s legal department and primary point of contact established during the Services.
Such address or other contact information may be changed from time to time by either party upon written notice to the other in the manner set forth above.
17. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and there are no other promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties with respect to the subject matter hereof.
18. AMENDMENT. This Agreement may not be modified or amended except in a writing signed by both parties.
19. SEVERABILITY. If any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement shall remain in full force and effect.
20. WAIVER. Any waiver (express or implied) by either party of any violation or breach of this Agreement shall not constitute a waiver of any other or subsequent violation or breach.
21. APPLICABLE LAW; JURISDICTION AND VENUE. This Agreement shall be governed by the laws of the State of Delaware, excluding its choice of law rules. In any legal action relating to this Agreement, Client agrees and consents (a) to the exercise of jurisdiction over it by a state or federal court in Texas, U.S.A., and (b) that if Client brings the action, it shall be instituted exclusively in one of the courts specified in subsection (a) above. FCG may institute legal action in any appropriate jurisdiction.
22. FORCE MAJEURE. Neither party shall be liable to the other for its failure to perform any of its obligations under this Agreement, except for payment obligations, during any period in which such performance is delayed because rendered impracticable or impossible due to circumstances beyond its reasonable control, provided that the party experiencing the delay promptly notifies the other of the delay and the reasons therefor.