INTERTEK NSTL
DEVELOPER TESTING AGREEMENT
FAX BACK COVER SHEET
Fax to:
Intertek NSTL – Attention Admin.
Fax number:
1-610-941-6705
Phone number:
1-610-832-8409
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Please make sure you fill in your company name on the first page of the agreement and sign
the agreement. We will fax back an executed copy.
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INTERTEK TESTING SERVICES NA, INC. MASTER AGREEMENT
Between __________________ (“Developer”) and Intertek NSTL
I.
Definitions. Capitalized terms not otherwise defined shall have the meanings set forth below:
A.
B.
II.
Affiliate means a Person controlling, controlled by or under common control with the subject Person.
Agreement means this Master Agreement, all Exhibits, Schedules and Program Riders identified hereto pursuant to Section IX
below, as amended from time to time.
C. Conclusions mean the results, pass/fail determinations and other findings of Intertek NSTL through application of Program test
procedures. Conclusions may depend on test parameters and purposes, the quality and scope of data provided and/or results
requested and other discretionary factors and are therefore not objectively definitive or exhaustive.
D. Confidential Information means any information identified by the disclosing party as confidential prior to or upon disclosure,
the Developer’s Products, Intertek NSTL’s testing methodologies, test data and Conclusions, or the disclosing party’s
confidential business plans, pricing terms, trade secrets, confidential technology and know-how; which has been identified as
“Confidential,” by a legend on the document itself, or, in the case where the disclosure was verbal, by a memo summarizing the
confidential disclosure delivered to the Receiving Party within 72 hours of the initial disclosure of the confidential information.
provided, however, that Confidential Information shall not include information (i) previously known to the receiving party
without an obligation of confidence, (ii) independently developed by or for the receiving party, (iii) acquired by the receiving
party from a third party which is not under an obligation of confidence with respect to such information, or (iv) which is or
becomes publicly available through no breach of an obligation of confidence.
E. Developer means the party identified as such above and signatory hereto, whose Products are to be submitted for testing
hereunder.
F. Developer Products means the technology, equipment, applications and/or software submitted by Developer for testing
hereunder.
G. Effective Date, with respect to this Master Agreement, has the meaning ascribed in Section VIII A. Effective Date with respect
to any Rider shall be deemed to be the date on which Intertek NSTL signed the applicable Rider.
H. Intertek NSTL Licensee means any company that has a relationship with Intertek NSTL through a license agreement for
performance of Services.
I.
Intertek NSTL is wholly owned by Intertek Testing Services, NA, a New York corporation. Intertek NSTL and Intertek Testing
Services, NA are fully independent testing laboratories. Neither are Affiliates of any Program Sponsor or Developer.
J. Non-Program Testing means testing pursuant to scope of work, testing parameters and fees (“Non-Program Testing Fees”)
mutually agreed upon between Intertek NSTL and Developer (whether as such or as product or equipment vendor)
independently of any Program or Program Sponsor, and documented in a writing executed by the parties (the “Non-Program
Testing Workscope” or “Exhibit A”). With respect to Non-Program Testing, the provisions of this Agreement relating to a
Program, Program Sponsor or Program Rider shall not apply.
K. Person means an individual or entity.
L. Program means the quality assurance, product eligibility, product registration, logo certification or other testing program
identified in the applicable Program Rider.
M. Program Sponsor means the party identified as such in the applicable Program Rider.
N. Program Rider means an attachment identified to this Agreement pursuant to Section IX below describing a Program.
O. Program Website means any web site or portal that is used by either Intertek NSTL and/or any Program Sponsor to provide any
information to Developers regarding any Program or to accept Developer submissions.
P. Services mean the testing services or other services as noted in any Exhibit A or applicable Program Rider or Non-Program
Testing Workscope.
Services. Intertek NSTL shall provide Services subject to and in accordance with the terms of this Agreement and prevailing
industry standards. Services shall be provided by qualified staff, which may include employees and agents of Intertek NSTL, its
Affiliates and/or Intertek NSTL Licensees. Intertek NSTL shall deliver its Conclusions to Developer and/or the Program Sponsor in
accordance with the terms of the applicable Program. Conclusions are valid only with respect to the specific versions of Developer
Products tested and for the specific Program. Acceptance of Developer Products is at Program Sponsor’s discretion and is not
ensured by test Conclusions. Nothing in this Agreement prohibits or restricts Intertek NSTL from providing similar testing services
to any third party in connection with any product, including without limitation any product competitive with Developer’s Products.
III. Developer Submissions.
A. Prior to testing, Developer shall execute and deliver the applicable Program Rider and/or may be required to register online for
the applicable Program. Upon registration Developer shall, at its sole risk and cost, deliver the required Developer Products.
Developer warrants that it has all requisite authority to submit Developer Products for testing as contemplated by this
Agreement. Testing will not commence until Intertek NSTL has received all requisite Developer deliverables.
B.
Procedures for Program registration, delivery of Developer Products, submission of Applications, testing requirements and
Testing Fees can be found at the then current version of the Program Web Site. It is Developer’s responsibility to monitor the
Program Web Site for notices. For each Application to be tested Developer shall provide Intertek NSTL with all required
information as indicated on the Program Web Site. All cost in delivering Applications to Intertek NSTL shall be borne by
Developer and Testing shall not proceed until Intertek NSTL has received all required items.
C. Procedures for submission of Applications or products for Non-Program Testing shall be as set forth in the applicable NonProgram Testing Workscope.
D. Intertek NSTL shall use Developer Products only for internal testing purposes as contemplated by this Agreement. In no event
shall Intertek NSTL be liable for loss of or damage to Developer Products unless caused solely by Intertek NSTL’s gross
negligence.
IV. Fees and Payment. Developer shall pay all fees specified in the applicable Program Rider or on the then current version of the
applicable Program website or portal (or, in the case of Non-Program Testing, all fees specified in the applicable Non-Program
Testing Workscope), in US dollars, net to Intertek NSTL of all taxes and withholdings. Unless otherwise agreed by the parties, all
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payments shall be made prior to the commencement of the Services. If Developer terminates testing, Intertek NSTL shall be entitled
to retain Payments for services performed.
V.
Restrictive Covenants.
A. Confidentiality. During the term of this Agreement and for a period of three (3) years thereafter (and perpetually with respect to
Confidential information designated by the disclosing party as trade secrets), except (i) as contemplated by this Agreement or
any applicable Program, (ii) for disclosure to any Intertek NSTL Affiliate or Licensee pursuant to the following confidentiality
restrictions, and (iii) as required by an applicable law, rule, regulation or order of a duly empowered government agency or a
court of competent jurisdiction (after notice and a reasonable opportunity to intervene is given to the disclosing party), neither
party shall directly or indirectly use, publish or disclose to any Person any Confidential Information obtained under this
Agreement without the disclosing party’s prior written consent.
B.
C.
No Solicitation. During the Term of this Agreement and for a period of twelve (12) months thereafter, neither party shall
directly or indirectly solicit employees of the other for hire. Notwithstanding the foregoing, nothing contained herein shall
preclude a party from employing the other party’s employees who respond to a general advertisement for employment placed in
print newspapers, magazines, or on the internet.
Survival. The provisions of this Section V shall survive any termination of this Agreement.
VI. Intellectual Property Rights. In providing the Services, Intertek NSTL may use test methodologies proprietary to Intertek NSTL
and/or the applicable Program Sponsor and/or developed by or in conjunction with the Program Sponsor (or, in the case of NonProgram Testing, by or in conjunction with Developer), all of which shall be deemed Confidential Information proprietary to
Intertek NSTL (or the applicable Program Sponsor, as the case may be), and Developer hereby disclaims any and all right, title and
interest therein and thereto (except as may otherwise be agreed in an applicable Non-Program Testing Workscope). Without limiting
the generality of the foregoing, Intertek NSTL is the acknowledged owner of its Confidential Information, including without
limitation, testing methodologies, processes, plans, software, code, automation script, infrastructure, websites, portals, testing and
data management tools used in conjunction with the performance of the Services, and Developer is the acknowledged owner of all
right, title and interest in and to Developer’s Products and, subject to the provisions of any applicable Program, test results relating
thereto and other Developer Confidential Information. Performance of the Services shall not be deemed “work for hire” and shall not
confer any ownership right upon Developer. Nothing in this Agreement shall be construed to grant either party any license to use the
intellectual property of the other or of any Program Sponsor, except to the limited extent necessary for performance of this
Agreement. Neither party shall appropriate any use or claim any right or license whatsoever to use any trademark, trade name, logo
or service mark of the other or of any Affiliate or Licensee of the other or of any Program Sponsor for any purpose, including but not
limited to advertising, without the owning party’s prior written consent. Notwithstanding the foregoing or any provision of this
Agreement to the contrary, Intertek NSTL may archive Developer’s Products in Intertek NSTL’s custody for a period of twelve (12)
months following termination of any Program. The provisions of this Section VI shall survive any termination of this Agreement.
VII. Risk Allocation.
A.
B.
C.
Warranties and Disclaimers. Each party represents and warrants that it has full authority and all third-party permissions
requisite for its performance of this Agreement, and that such performance does not and will not infringe upon the right, title or
lawful interest of third parties. Developer acknowledges, however, that Program Sponsors may specify, or participate in the
development of, elements of test design, parameters and protocols, and Intertek NSTL makes no warranties with respect
thereto. Testing or certification of Developer’s Products does not assure acceptance of Developer’s Products by Sponsors, or
imply endorsement by Intertek NSTL. Intertek NSTL’s Conclusions, moreover, are limited by mutually agreed-upon test
parameters and are not intended as comprehensive evaluations of Product suitability or function. Conclusions report failures
encountered within test parameters but do not attempt to indicate all possible Product failures, hidden or malicious code, or
results that a software proof or exhaustive examination of source code might reveal. EXCEPT AS EXPRESSLY PROVIDED
IN THE AGREEMENT, Intertek NSTL MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS
OR IMPLIED, WITH RESPECT TO THE SERVICES, DEVELOPER’S PRODUCTS OR ANY INFORMATION OR DATA
INCLUDED THEREIN, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, WORKMANLIKE EFFORT,
INFORMATIONAL CONTENT OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
Mutual Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR
CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES OR FOR LOST PROFITS, EVEN IF ADVISED
IN ADVANCE OF THE POSSIBILITY THEREOF. EXCEPT FOR LIABILITY UNDER SECTION C BELOW
(INDEMNIFICATION), EITHER PARTY’S DIRECT LIABILITY IS LIMITED TO FEES PAID OR PAYABLE BY
DEVELOPER.
Indemnification. Intertek NSTL and Developer agree as follows as a material condition to Intertek NSTL’s performance of this
Agreement: (i) Developer shall not introduce Intertek NSTL’s Conclusions into dispute resolution proceedings between
Developer and Sponsor or any third party (a “Third-Party Dispute”) without the prior written consent of Intertek NSTL; and (ii)
Developer shall indemnify, defend and hold Intertek NSTL harmless from and against any and all losses, claims, damages,
costs and expenses (including without limitation reasonable attorneys’ fees) arising in connection with any Third-Party Dispute
or relating to any distribution, publication, transmission or other dissemination of the results of the Services and/or
Conclusions, or any use of Developer’s Products.
D. Developer agrees not to seek any recourse against any Program Sponsor for matters arising out of or relating to this Agreement.
VIII. Term and Termination.
A.
The term of this Agreement and all associated Exhibits, Amendments and Riders shall commence on the date signed by Intertek
NSTL (the “Effective Date”) and shall continue until terminated, in writing, by either party. Upon termination of this
Agreement, the receiving party shall either return or destroy all Confidential Information, as requested in writing by the
disclosing party, and, if requested by the disclosing party, so certify in writing. The obligations of this provision and Payment,
Confidentiality, IP Ownership, Disclaimers and Indemnification Sections will survive any termination of this Agreement.
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IX. Miscellaneous.
A. Contract Execution and Subsequent Modification; Notices and Communications. Upon manual execution of this Master
Agreement by an authorized representative of each party hereto, this Agreement, inclusive of all Exhibits and Schedules hereto
and all Program Riders now or hereafter identified hereto as hereinafter provided, shall be binding upon and shall inure to the
benefit of the respective parties. Developer agrees that the following shall be fully authorized and binding upon Developer: all
electronic signatures and “click-throughs” purporting to originate from a Developer employee, agent or representative on any
subsequent additional Program Rider or any modification or acknowledgment of modification of this Agreement or any such
Program Rider(s), including without limitation any license, payment obligation, indemnity, limitation of liability and dispute
resolution provisions; any Program modifications of which prior notice is given by Intertek NSTL or any Program Sponsor
(which notice may be posted on the applicable Program portal, helpdesk or other web site); and any electronic or other written
notification or communication from or to Developer or in a subsequent modification to this Agreement. Payment for Services
shall be additional conclusive evidence of Developer’s agreement to the terms hereof, as modified from time to time. Notices,
demands and other communications shall be deemed properly given and duly received as so stipulated or when: (i) delivered
by hand, (ii) sent by certified mail return receipt requested, (iii) sent by facsimile, electronically confirmed and followed up
immediately by standard U.S. mail, or (iv) reputable express or overnight courier (with acknowledgement received by the
courier), to Developer, or to Intertek NSTL 670 Sentry Parkway, Blue Bell, PA 19422, Attn: General Counsel (Tel: 610/ 8328400; Fax: 610/ 941-6705).
B.
Supplementary Contract Documents. Any Rider may be identified to this Agreement from time to time by reference to this
Agreement acknowledged by both parties as provided in Section IX (A).
C.
Integration; Modification. This Agreement (together with all Exhibits and Riders identified hereto as provided in this Section
IX, the provisions of which are incorporated into this Agreement by this reference), constitutes the entire understanding and
agreement of the parties with respect to the subject matter thereof, superseding all prior and contemporaneous agreements, oral
or written. Any conflict in the provisions of component parts of this Agreement shall be resolved by observing the priority, in
descending order, of the following: this Master Agreement, and then the applicable Program Rider. If application of the
foregoing rule does not resolve a conflict, the more recent instrument shall govern. The Agreement may be amended (i) by
written instrument signed by the party against whom enforcement is sought, or (ii) by Intertek NSTL, as required by a Sponsor
or by Intertek NSTL in its reasonable judgment for efficient and uniform Program administration, by notification (which may
include e-mail or Program web site postings); provided, however, that in the event a Developer objects to notification given
pursuant to clause (ii), such amendment shall not be effective with respect to the objecting Developer, and Intertek NSTL may
terminate this Agreement. In the event of any conflict between this Master Agreement and any Non-Disclosure or
Confidentiality Agreement between the Parties, this Master Agreement shall govern.
Force Majeure. Neither party shall be responsible for delays or failures in performance resulting from acts beyond the
reasonable control of such party. The existence of such causes shall justify extension of the time of performance to the extent
reasonably necessary to enable such party to satisfy its obligation hereunder after the cause of delay or failure has been
removed.
D.
E.
Relationship Between the Parties. The relationship between the parties established by this Agreement is that of independent
contractors and not partners, joint-venturers or principal and agent. Neither party shall have any authority pursuant to this
Agreement to take any action, make any statement or enter into any commitment on behalf of the other, except as may be
provided in a Rider identified to this Agreement.
F.
Third Party Beneficiaries. Except as may be expressly provided in any applicable Program Rider, this Agreement is not
intended to benefit any third party.
G.
US Export Regulations. The parties agree to comply with the requirements of US Export regulations as in effect from time to
time. Developer is responsible for informing Intertek NSTL in advance of any applicable import/export restrictions that may
apply to the samples and/or services to be provided, including instances where products, information or technology may be
exported to a country that is restricted or banned from such export.
Governing Law; Dispute Resolution. The Agreement will be construed according to the substantive law, but not the choice of
law rules, of the Commonwealth of Pennsylvania and of applicable federal law of the United States. If any dispute arises under
this Agreement, the parties agree that the venue for such dispute will be in the courts in or serving Philadelphia County,
Pennsylvania, and both parties hereby submit to the jurisdiction of such courts. Notwithstanding the foregoing, any dispute not
involving matters addressed in Sections V (Restrictive Covenants) or VI above (Intellectual Property) shall be resolved by
arbitration in Philadelphia, Pennsylvania, in accordance with the then applicable rules of the American Arbitration Association,
and judgment may be entered upon the award in any court of competent jurisdiction; provided, however that the arbitral panel
shall not have authority to award punitive damages. The parties acknowledge, however, that any violation of the provisions of
Sections V or VI would result in immediate and irreparable harm to the injured party for which monetary damages would not
be an adequate remedy. Accordingly, each party agrees that the other may seek injunctive relief from any such harm in a court
of competent jurisdiction, any provision of this Agreement to the contrary notwithstanding. The parties stipulate English as the
language of notices, communications and dispute resolution under this Agreement.
H.
I.
No Waiver. The waiver by either party of a breach or violation of any provision of this Agreement shall not constitute a waiver
of any subsequent breach or violation thereof.
J.
Parties Bound; Assignment. The Agreement shall be binding upon the parties and their respective legal successors and
permitted assigns. Developer may not assign its rights under this Agreement without Intertek NSTL’s prior written consent,
such consent not to be unreasonably withheld.
Counterparts. The Agreement may be executed in several counterparts, each of which will be deemed to be an original, all of
which, when taken together, shall constitute one and the same instrument.
K.
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IN WITNESS WHEREOF, in consideration of the mutual covenants herein set forth, intending to be legally bound, the undersigned
have executed this Agreement as of the Effective Date:
DEVELOPER
Print Company Name:
Signature:
Intertek Testing Services NA, Inc.
Printed Name:
Printed Name:
Title:
Title:
Date:
Date:
Master Agreement
Signature:
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