Services Agreement

This agreement is entered into as of the Agreement Starts date signed by the Parties (the “Effective Date”).

Services

Company shall provide Client with the services and products described in the Statements of Work (the “Deliverables“).

Statements of Work

Contents of Statements of Work

The Parties shall describe each individual Deliverables to be provided under this agreement in its own statement of work (each, a “Statement of Work”), each one including a full description of the particular Deliverables provided under the Statement of Work, the applicable Fees and fee schedule, including any milestones and milestone payments if applicable, for the particular Deliverables, the service levels and acceptance criteria for the particular Deliverables, any materials the Parties will provide for the particular Deliverables, a timeline for providing the particular Deliverables, and a unique identification number for the Statement of Work and explicit reference to this agreement.

Integration

A Statement of Work that is signed by both Parties, properly marked with a unique identification number, and refers explicitly to this agreement, will be deemed an integrated part of this agreement.

Severable

The Parties may terminate any individual Statement of Work without effecting the remaining agreement or any other Statement of Work.

Conflict of Terms

If there is a conflict between the terms of this agreement and any Statement of Work, the Statement of Work will control.

Order of Precedence

In case of any inconsistency, conflict, or ambiguity among multiple agreements between Company and Client, the documents shall govern in the following order: (a) Company‘s change orders and written amendments to this agreement; (b) this Agreement; (c) Client‘s change orders and written amendments to Client‘s agreements that Company signed; and (d) Client‘s agreement that Company signed. Among categories of documents having the same order of precedence, the term or provision that includes the most recent effective or signature date shall control.

Changes to Statements of Work

Proposing Changes

Either party may propose changes to the Deliverables, Fees, or schedule of a Statement of Work by giving written notice to the other party.

Finalizing Changes.

If the Parties agree to change the Deliverables, Fees, or schedule of a Statement of Work, the Parties shall cooperate to execute a written amendment to the relevant Statement of Work detailing the changes.

Additional Statements of Work

Request Additional Services

The Client may request additional services by written notice to the Company reasonably detailing the requested services.

Assess the Request

Promptly after receiving a request for additional services from the Client, the Company shall assess the request to determine if there are circumstances preventing it from providing the services, and if there are no circumstances preventing it from providing the requested services, provide the Client with estimated Fees and the timeline for the requested services.

Execute New Statement of Work

If after receiving the Company’s estimates and the Client still wants the requested services, the Parties shall execute a new Statement of Work according to the requirements of paragraph “CONTENTS OF STATEMENTS OF WORK”.

Acceptance and Rejection

Inspection Period

The Client will have seven calendar days after the Company provides each Deliverables to inspect and test the Deliverables to ensure it meets the acceptance criteria outlined in the applicable Statement of Work (the “Inspection Period”).

Acceptance

If in Client‘s opinion the Deliverables meets the acceptance criteria, Client shall accept the Deliverables and notify Company that it is accepting the Deliverables.

Deemed Acceptance

The Client will be deemed to have accepted the Deliverables if fails to notify the Company on or before the expiration of the Inspection Period, or if during the Inspection Period, uses or attempts to use the Deliverables beyond what is necessary for inspection and testing and in a way a reasonable person would consider consistent with the Client having accepted the Deliverables from the Company.

Rejection

If in the Client‘s opinion, the Deliverables fails in a material way to meet the acceptance criteria, the Client may reject the Deliverables by delivering to Company a written list detailing each failure to satisfy the acceptance criteria.

Opportunity to Cure

If the Client rejects the Deliverables, the Company will have three opportunities to promptly cure each failure in the Deliverables and re-deliver the Deliverables to the Client to re-inspect and test.

Continued Failure to Cure

If in the Client‘s opinion, the Company‘s corrections fail to satisfy the acceptance criteria three times, Client may either terminate this agreement, or adjust the acceptance criteria for that Deliverable with the Company’s approval.

Compensation

The Client shall pay to the Company compensation for each Deliverables according to the fee schedules listed in the applicable Statements of Work (the “Compensation”).

Payment of Compensation

Invoice Delivery

Company shall invoice Client as needed for prepayment of hours. Recurring services are sent on the 1st day of each month and are due the same day. Having a valid payment option on file is required for servicing all recurring services.

Payment

The Client shall pay each invoice to the Company within fourteen calendar days after receiving each invoice, in immediately available funds, and using the options available on the invoice that the Company indicates.

Accounting

The Company shall maintain records of its Services to the Client, and make these records available to the Client on request.

Invoice Procedure and Requirements

The Company shall make each invoice to the Client in writing, including an invoice number, the invoice date and accounting period, the total amount due, and the accounting that details the specific Deliverables the invoice is for, and send each invoice to the signing party representing the Client.

Hourly Billing Cycle

All hourly services will be billed within a standard calendar week that the Deliverables are performed in. A standard calendar week starts on Friday at 12:00 AM Pacific Standard Time and continues until seven days later on Thursday at 11:59 PM Pacific Standard Time. Invoices for hourly work are issued on Friday mornings. If the Deliverables that the hours are assigned for aren’t complete by the end of the billing cycle those hours are still due for that cycle’s invoice. All billable time is tracked on a per-minute basis, billed in 15-minute increments.

Taxes

Each party shall pay the Taxes arising from the party’s performance of its obligations and from compensation paid to the party.

Late Payments

Right to Suspend

If the Client fails to make payments when due three times over any two-month period, the Company may suspend the Deliverables until Client pays all outstanding fees plus a $250.00 reinstatement fee.

Interest on Late Payments

Any amount not paid when due will bear interest from the due date until paid at a rate equal to 10% of the total invoice amount, including previously issued interest, per payment term cycle. The payment term cycle is updated after interest is applied to the invoice and the due date on the invoice is updated to a new date fourteen calendar days in the future. When the new due date is issued, that is considered a new payment cycle and the total owed amount will be eligible for interest if the amount isn’t paid by the new due date, including any previously charged interest.

Term

Initial Term

The initial term of this agreement will begin on the Effective Date and continue for 1 year unless terminated earlier (the “Initial Term”).

Automatic Renewal

At the end of each Term, this Agreement will automatically renew for a renewal term of 1 year, unless terminated earlier (“Renewal Term”).

Election Not to Renew

Either party may elect not to renew this agreement, by providing notice to the other party at least fourteen calendar days before the end of the Term.

Term Definition

“Term” means either the Initial Term or the then-current Renewal Term.

Mutual Representations

Authority and Capacity

The Parties have the authority and capacity to enter into this agreement.

Execution and Delivery

The Parties have executed and delivered this agreement.

Enforceability

This agreement constitutes a legal, valid, and binding obligation, enforceable against the Parties according to its terms.

No Conflicts

Neither party is under any restriction or obligation that may affect the performance of its obligations under this agreement.

No Warranty

“As-Is”

Unless otherwise listed in this agreement, the Deliverables are provided “as is,” with all faults, defects, bugs, and errors.

No Warranty

Unless otherwise listed in this agreement, the Company does not make any warranty regarding the Deliverables, which includes that the Company disclaims to the fullest extent authorized by the law any and all other warranties, that may include, but not limited to, whether express or implied, including any implied warranties of title, non-infringement, quiet enjoyment, integration, merchantability or fitness for a particular purpose.

Management

Project Managers

Each party shall appoint a relationship manager to manage the relationship established by this agreement (each a “Project Manager”) who will have overall managerial responsibility for the party’s responsibilities under this agreement, including for the Company’s Project Manager, coordinating, overseeing, and monitoring the Company’s performance of each Deliverables, on the other party’s request, attend the other party’s regularly scheduled executive-level meetings and planning sessions in connection with this agreement, serve as the primary liaisons between the Parties, maintain steady communication with each other regarding the performance of each Delieverables, and be authorized to call on the experience, expertise, and resources of its respective Companys necessary and desirable to properly perform their duties.

Communications Though Project Managers

The Parties shall direct all significant communications between themselves to the other party’s Project Manager, except that Client may direct communications regarding disruptions, outages, latency, or other issues with a Deliverables to Company‘s emergency contact designated under paragraph “EMERGENCY CONTACT”.

Contact Information

Project Manager Information

Promptly after the Effective Date, each party shall provide the other party with the name and e-mail address of its Project Manager.

Emergency Contact

In addition to the Project Manager, the Company shall provide the name and e-mail address of its personnel who the Client should contact in case of any disruptions, outages, latency, or other issues with a Deliverable.

Change to Contacts or Contact Information

Either party may change their Project Manager or the contact information of their Project Manager, and in the Company‘s case its emergency contact and the contact information of the emergency contact, by giving written notice to the other party detailing the changes.

Personnel

Skilled Personnel

The Company shall retain and employ personnel, including subcontractors under section “SUBCONTRACTORS” who have the experience, skill, diligence, and expertise necessary and appropriate to perform the Deliverables according to standards and service levels required under this agreement.

Supervision of Personnel

The Company shall be responsible for all personnel assigned to provide the Deliverables to the Client.

Security Training

The Company shall ensure that its personnel, on hiring and at least once a year afterward, participate in security awareness training, including at a minimum, Company’s security policies, including acceptable use, password protection, data classification, incident and breach reporting, the repercussions of violations, and brief overviews of applicable laws and regulations.

Replacement Personnel

Request for Good Cause

For good cause, the Client may request a replacement of any of the Company’s personnel.

Response to Request

If the Client has good cause to request a replacement, within thirty calendar days of receiving the request, the Company shall use reasonable efforts to provide substitute personnel of sufficient skill, knowledge, and training, subject to their availability.

Background Checks, Criminal Records Checks, and Credit Checks

To the extent permitted by Law and after obtaining the applicable consents from the affected personnel, before assigning any personnel to provide Deliverables under this agreement the Company shall complete background checks on all these personnel, and on the Client’s reasonable request and the Client’s sole expense, update any of these checks.

Subcontractors

Subcontracting Permitted

The Company may subcontract, either wholly or partially, any work under this agreement to its affiliates or any other third party.

Subcontracting Remains Responsible

The Company will be deemed to have performed any work actually performed by a subcontractor, and remain responsible and liable for any work performed by a subcontractor as if the Company had provided the work itself.

Software Deliverables and License Grant

Software Provided in Source Code

Unless the Parties agree otherwise in any Statement of Work or any separate license or technology agreement, if the Company provides the Client with any Deliverables that requires the Client‘s use of any Company software, other than firmware necessary to operate a piece of hardware, (a “Software Deliverable”), the Company shall provide Client with access to or a copy of the Software Deliverable.

Object Code Only

The Company will be required to provide Software Deliverables in object code only.

Software License Grant

The Company hereby grants to Client a non-exclusive, non-transferable worldwide license to use and display, to the extent necessary for the Client to obtain the benefit of the relevant Deliverables, any Software Deliverables the Company provides to the Client under this agreement, in object code only, use and display, to the extent necessary for the Client obtain the benefit of the relevant Deliverables, any documentation regarding the provided Software Deliverables, and make copies of the Software Deliverable and documentation for ‘s internal use.

Firmware Sold, Not Licensed

The license granted under this section applies to software separable from any hardware provided by the Company, and does not apply to any firmware related to the Deliverables, which is sold instead of licensed. 

Termination of License Grant

The Client‘s license to use, display, and make copies of a Software Deliverable and the related documentation will expire or terminate on the expiration or termination of the applicable Statement of Work. 

Third-Party Software 

If any Software Deliverables are licensed to the Company by a third party, the Client shall be bound by any different or additional conditions that are required by the third party that the Company communicates to the Client in writing.

Restrictions

Neither the Client, nor any of its Subsidiaries, Affiliates, or agents, will sell, lease, license, or sublicense any Software Deliverable, decompile, disassemble, or reverse engineer a Software Deliverable, in whole or in part, unless any of these restrictions are prohibited by law, allow anyone other than its employees to access a Software Deliverable, use a Software Deliverable to provide processing services to third parties, otherwise use a Software Deliverable on a “service bureau” basis, or provide, disclose, divulge, make available to, or permit the use of a Software Deliverable by any third party unless the Company consents in writing.

Markings and Notices

The Client will not remove any copyright notices, proprietary markings, trademarks, or trade names from any Software Deliverable or documentation.

As-Is Warranty

Software Deliverables and documentation are provided “as-is”.

No Implied Warranty

The Company makes no warranties whatsoever, express or implied, regarding any Software Deliverable or related documentation, which may include, but not limited to, including no warranty of merchantability, or fitness for any particular purpose.

Facilities and Equipment

Services Requiring the Client Equipment at the Company Facilities

The following terms will apply to the extent Company is providing Deliverables using Client equipment at Company‘s facilities:

Use Only for Services

The Company shall install the Client’s equipment in the Company’s facilities only to the extent necessary and desirable for the purpose of providing the Deliverables.

Right to Use

The Client hereby grants the Company all necessary rights and permissions necessary to use the Client’s equipment for the purpose of providing the Deliverables.

No Ownership Interests

The Company’s use and placement of the Client’s equipment in the Company’s facilities will not create or vest in the Client in any easement, leasehold interest, or other property rights of any nature in the Company’s facilities or in any property located in the Company’s facilities, except for the Client’s equipment.

No Restrictions on the Company’s Use of Facilities

Nothing in this section will limit the Company’s right to access, operate, and use its facilities.

Access to the Company’s Facilities Access on Notice

Within 2 business day’s written notice from the Client, the Company shall provide the Client, its Representatives, with reasonable access to the Client’s equipment in the Company’s facilities during the Company’s regular business hours.

Contents of Notice

The Client shall include in its notice to the Company the identity of its Representatives who will access the Company’s facilities, the specific purposes for which the Client needs access to its equipment, and the work the Client intends to undertake.

Reject Access

Subject to paragraph “EMERGENCY ACCESS” directly below, the Company may reasonably reject, delay, or restrict the Client’s access for good cause.

Emergency Access

In the case of a bona fide emergency in which the Client’s Representatives need immediate access to its equipment in the Company’s facilities, the Company shall use reasonable efforts to grant immediate access, provided that the Client’s Representatives must comply with the Company’s emergency access procedures as posted or as otherwise communicated in writing, and with any other reasonable terms of access, the Company requires.

Maintenance Periodic Maintenance

The Company may periodically conduct routine scheduled maintenance of its facilities during which time the Client’s equipment may be unable to transmit or receive data, and the Client may be unable to access its equipment.

Notice and Timing Maintenance

The Company shall provide the Client with written notice at least seven calendar days before any routine maintenance. The Company shall use reasonable efforts to conduct this maintenance during non-peak hours and to complete this maintenance as promptly and efficiently as possible so as to minimize any inconvenience to the Client, any interruption of the Deliverables, and any failure to achieve applicable service levels.

No Liability

During this routine maintenance, the Company will not be liable for any interruption to the Deliverables or failures to achieve any applicable service levels, unless the interruption or failure to achieve any applicable service levels is the result of the Company’s gross negligence or willful misconduct.

Emergency Maintenance

If the Company is required to conduct emergency maintenance on its facilities, the notice provisions of this paragraph “MAINTENANCE” will not apply, and the Company will only be required to give as much notice as practicable.

Placement

The Company may decide the placement of the Client’s equipment within the Company’s facilities.

Services Requiring the Company’s Equipment at the Client’s Facilities

The following terms apply to the extent the Company is providing Deliverables using the Company’s Equipment at Client‘s facilities:

Access

The Client shall provide the Company with reasonable and safe access to the Client’s facilities, at all times reasonably required by the Company to provide the Deliverables.

No Liability for Impact on Services Caused by Delay

The Company will not be liable to the Client for any negative impact on the Deliverables or service levels that are caused by or is the direct result of the Client’s unreasonable denial or delay of the Company’s access to the Client’s facilities.

Use of Facilities and Support

The Client shall provide the Company, at no expense to the Company, temporary use of space, equipment, and support at the Client’s facilities as reasonably necessary for the Company to provide the Deliverables, including all heat, light, power, air conditioning, uninterruptible power supply, and other similar utilities, reasonable office space, furniture, reasonably secure storage space, and equipment staging facilities, office supplies, telephone service, office support services (including security and janitorial), coordination of facilities security requirements, and administrative support.

Provide Safe Working Environment

The Client shall ensure that its facilities constitute a safe working environment, and complies with all applicable laws.

No Ownership Interest

The Company’s use of any of the Client’s facilities will not constitute, create, or vest in the Company any leasehold interest, easement, or other property right in the Client’s facilities or equipment.

No Restrictions on ‘s Use of facilities

Nothing in this section will limit the Client’s right to access, operate, and use its facilities.

Equipment at the Client’s Facilities

The Company shall maintain all equipment (if any), whether owned, rented, or leased by the Company, that is located at the Client’s facilities in a room accessible only by using a key or computerized card-access security system, and only by the Client’s employees who are responsible for the operation or maintenance of that equipment and any-authorized personnel.

Parties Conduct While at Each Others’ Facilities

Each party shall exercise due care and diligence to prevent any injury to persons or damage to property while at the other party’s facilities, and comply with the other party’s policies and procedures the other party gives it notice of.

Service Levels

Applicable Levels

The Company shall perform the Deliverables so as to meet or exceed the service levels listed in the applicable Statement of Work (the “Service Levels”).

Errors in Services

On the Client‘s notice of any errors or omissions, the Company shall provide the Client with information and adjustments in the Deliverables for any errors or omissions in the Deliverables.

Delays in Services

The Company shall use reasonable efforts to avoid and remedy in delay in the Deliverables.

Improvement Opportunities

Identification

The Company shall implement formal processes to proactively identify, investigate, and analyze opportunities to improve the overall success of the Parties’ relationship and the Deliverables, including opportunities to continue to improve the quality of the Deliverables, suggest new Deliverables (including new predictive models that could enable the Client to maintain or enhance its industry advantages), drive additional revenues to, or cost savings for, the Client through technological innovation, optimize the Client’s business and technical assets through shared or leveraged services, expanded re-use, and consolidation, and provide increased business operational and technical resilience to continue the timely delivery of Deliverables despite unforeseen external events.

Implementation of Improvements

Notice of Opportunities and Costs

If the Company determines that an improvement opportunity is technically possible and could result in meeting one or more of the objectives, the Company shall notify the Client of the improvement opportunity and any potential increases in Compensation it would require.

Amendments

If the Client requests an improvement, the Parties shall cooperate to amend this agreement to provide for the improvement, including any appropriate adjustment in Compensation the Parties agree on.

Business Continuity and Disaster Recovery Plans

Business Continuity Plans

The Company shall maintain a business continuity plan for each Deliverables, describing measures the Company will implement to recover from a Disaster, if applicable.

Disaster Recovery Plans

The Company shall include in each business continuity plan a plan for the recovery of critical technology systems, and procedures for restoring business operations at the primary location or at a designated recovery site for those critical technology systems, if necessary.

Alternative Communications Plans

The Parties shall cooperate to establish a plan for alternative communications in the event of a Disaster.

Disaster Definition

“Disaster” means, for the purpose of this agreement, any unplanned impairment or interruption of those systems, resources, or processes that enable standard performance or functionality of the applicable Deliverables.

Intellectual Property

Each Party Retains Intellectual Property

Subject to paragraph “LICENSE TO THE COMPANY” below, each party will retain an exclusive interest in and ownership of its Intellectual Property developed before this agreement or outside the scope of this agreement.

License to the Company

The Client hereby grants to the Company a non-exclusive, non-transferable, non-sublicensable, worldwide, and royalty-free license to use Client‘s pre-existing Intellectual Property solely for the purpose of providing the Deliverables.

Developed Intellectual Property

If any Intellectual Property is developed under this agreement, whether by one party on its own or jointly developed by both Parties, the Parties shall cooperate to execute a separate agreement regarding the ownership of and any licenses regarding that newly-developed Intellectual Property.

Confidentiality

Confidentiality Obligation

The receiving party shall hold in confidence all Confidential Information disclosed by the disclosing party to the receiving party.

Use Solely for Purpose

A receiving party may only use the Confidential Information according to the terms of this agreement and solely for the Purpose.

Non-Disclosure

A receiving party may not disclose Confidential Information, the existence of this agreement, the Transaction, or the Purpose to any third party, except to the extent allowed under paragraphs “PERMITTED DISCLOSURE” and “REQUIRED DISCLOSURE”.

Permitted Disclosure

A receiving party may disclose Confidential Information to its Representatives and to the extent that the disclosing party consents in writing to such disclosure, or to the receiving party’s officers, directors, employees, Affiliates, or Representatives who need to know the Confidential Information in connection with the Purpose, have been informed of the confidentiality obligations of this agreement, and agree to comply with the confidentiality obligations of this agreement.

Required Disclosure

The receiving party may disclose Confidential Information if it is required to do so by law but only if the receiving party gives the disclosing party notice to allow it a reasonable opportunity to either seek a protective order or other appropriate remedy or waive the recipient’s compliance with the confidentiality obligations and reasonably cooperates with the disclosing party in its reasonable efforts to obtain a protective order or another appropriate remedy and discloses only that portion of the Confidential Information that, having consulted with its counsel, it is legally required to disclose, anduses reasonable efforts to obtain reliable written assurance from the third party that the Confidential Information will be kept confidential.

Standard of Care

In protecting the Confidential Information, the receiving party shall exercise at least the same degree of care as it uses with its own Confidential Information, but in no event less than reasonable care.

Burden of Proof

The receiving party will have the burden of proof relating to all exceptions to the definition of Confidential Information.

No Copies

A receiving party may not copy, record, or otherwise reproduce any Confidential Information.

No Modification of Confidential Information

The receiving party will not copy, decompile, modify, reverse engineer, or create derivative works out of any Confidential Information without the disclosing party’s written consent.

Mutual Non-Solicitation

Non-Solicitation of Employees and Customers

During the period starting on the Effective Date and ending three years after the termination or expiration of this agreement (the “Non-Solicitation Period”), neither party will directly or indirectly, on its own behalf or in the service or on behalf of others, in any capacity induce or attempt to induce any officer, director, or employee to leave the other party, or solicit or accept, or attempt to solicit or accept, the business of any customer, consultant, or patron of the other party.

Permitted Hirings and Business

Voluntary Contacts

Each party may employ or accept the business of the other party’s officers, directors, employees, customers, consultants, or patrons who contact the party on their own initiative without any direct or indirect solicitation or encouragement by the party.

Former Employees

Each party may employ any former officer, director, or employee of the other party whose employment with the other party has been terminated.

Former Customers

Each party may do business with any former customer, consultant, or patron of the other party who no longer does business with the other party.

Publicity

Consent

Neither party will use the other party’s name, logo, or trademarks, or issue any press release or public announcement regarding this agreement, without the other party’s written consent, unless specifically permitted under this agreement or required by law.

Cooperation

The Parties shall cooperate to draft all appropriate press releases and other public announcements relating to the subject matter of this agreement and the relationship between the Parties.

No Unreasonable Delay

The Parties will not unreasonably withhold or delay their consent to press releases or public announcements.

Use of Name

Neither party will use the other party’s name, logos, trademarks, or other marks without that party’s written consent.

Compliance with Laws

Each party shall comply with all laws relating to the Agreement, keep records evidencing its compliance, on the other party’s reasonable request, provide these records of compliance to the other party, and notify the other party if it becomes aware of any non-compliance in connection with this section.

Insurance

Insurance Requirement

The Company shall maintain the insurance necessary to cover its obligations and responsibilities under this agreement, or any amount required by law.

Proof of Insurance

At the Client‘s request, the Company shall provide the Client with certificates or other acceptable proof of its insurance, describing the coverage of its insurance, and notice of any material change to its insurance. 

Additional Insurance

The Client may require the Company to obtain a reasonable amount of additional insurance, by providing the Company good reason for the additional insurance, and requirements for the additional insurance.

Additional Insured can be added to the Company’s policy and shall, within thirty calendar days of the Effective Date, have the Company’s insurer add the Client as an additional insured to the Company’s policy.

Certificate of Insurance

The Company shall have its insurer send a certificate to the Client, proving the Client has been added to the Company’s policy and confirming that the insurer will give the Client thirty calendar days written notice before any proposed cancelation, modification, or reduction in coverage of ‘s policy.

No Contribution from the Client

Any insurance carried by the Client will not be subject to contribution.

The Company’s Use of Data

Purpose

The Company will use the Client‘s data only in furtherance of this agreement and in providing the Deliverables.

Standard of Care

The Company shall exercise at least the same degree of care as it uses with its own data and Confidential Information, but in no event, less than reasonable care, to protect the Client‘s data from misuse and unauthorized access or disclosure.

Safeguards Around Data

The Company shall use appropriate safeguards to protect the Client‘s data from misuse and unauthorized access or disclosure, including maintaining adequate physical controls and password protections for any server or system on which the Client’s data is stored, ensuring the Client’s data is not stored on any mobile device (for example, a laptop or smartphone) or transmitted electronically unless encrypted, and taking any other measures reasonably necessary to prevent any use or disclosure of the Client’s data other than as allowed under this agreement.

Permitted Disclosure

The Company may disclose the Client‘s data only to the extent necessary, and to its officers, directors, employees, consultants, and representatives on a need-to-know basis.

Required Disclosure

If the Company is compelled by law to disclose any of the Client‘s data, the Company shall notify the Client before disclosing the compelled data.

Unauthorized Disclosure

Report

Within seven calendar days of becoming aware of any unauthorized use or disclosure of the Client’s data, the Company shall promptly report that unauthorized use or disclosure to the Client.

Cooperation and Mitigation

The Company shall cooperate with any remediation that the Company, in its discretion, determines is necessary to address any applicable reporting requirements, and mitigate any effects of such unauthorized use or disclosure of the Client’s data.

Agents and Subcontractors

The Company shall ensure that any employees, agents, and representatives, including subcontractors, to whom it provides Client‘s data agree to the same restrictions and conditions listed in this agreement.

No Modification of Data

The Company shall not copy, decompile, modify, reverse engineer, or create derivative works out of any of Client‘s data.

Export Control

Laws

Each party shall obtain all permits necessary to and otherwise comply with all laws on export control applicable to this agreement and all transactions contemplated under this agreement.

Regulatory Matters

Each party shall promptly notify the other if it becomes the subject of any material claim or demand by any governmental authority regarding the Deliverables or otherwise regarding this agreement, or action relating to such a material claim or demand that is brought by either a governmental authority or another third party, and of any updates in the status or disposition of any such claim, demand, or action.

Inspection and Audit of Books and Records

Retain Books and Records

Each party shall keep its books and records (including personnel files) that relate to this agreement, and maintain them in a manner reasonably consistent with prior practices.

Inspection and Audit

On reasonable notice from the other party, each party shall provide the other party, and the other party’s Representatives, reasonable access to its books and records that relate to this agreement (and allow the other party to make photocopies, at the other party’s expense), during normal business hours.

Corrections

If either party’s audit reveals errors or discrepancies in the other party’s books and records, the other party shall promptly correct the error or discrepancy, including refunding any over-payments or making up any under-payments.

Inspection and Audit of Facilities and Employees

Inspection

On reasonable notice from the Company, the Client shall provide the Company access to its facilities, specified Representatives relevant to this agreement during normal business hours, so that the Company can inspect and audit the Client‘s facilities, and specified Representatives, to verify the Client is complying with this agreement.

Conduct of Inspection

Minimal Interference

The Company shall conduct any inspection and audit in a manner meant to minimize disruption to the Client’s business, including reasonably restricting the scope, manner, and duration of any inspection to minimize disruption.

Cooperation

The Client shall cooperate with the Company’s inspection and audit.

Termination

Termination on Notice

Either party may terminate this agreement or any Statement of Work for any reason with seven calendar days notice to the other party.

Termination for Material Breach

Termination of Statements of Work

Each party may terminate a Statement of Work with immediate effect by delivering notice of the termination to the other party if the other party fails to perform, has made or makes any inaccuracy in, or otherwise, materially breaches, any of its obligations, covenants, or representations specifically related to that Statement of Work or the relevant Deliverables, and the failure, inaccuracy, or breach continues for a period of fourteen calendar days after the injured party delivers notice to the breaching party reasonably detailing the breach.

Termination of Agreement for Material Breach

Each party may terminate any Statement of Work with immediate effect by delivering notice of the termination to the other party, if the other party fails to perform, has made, or makes any inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations in this agreement or any Statement of Work, the failure, inaccuracy, or breach is serious enough to materially harm or otherwise reduce the value of this entire agreement, not just any particular Statement of Work, and the failure, inaccuracy, or breach con tinues for a period of fourteen calendar days after the injured party delivers notice to the breaching party reasonably detailing the breach.

Termination for Insolvency

If either the Client becomes insolvent, bankrupt, or enters receivership, dissolution, or liquidation, the other party may terminate this agreement with immediate effect.

Termination for Failure to Pay

The Company may terminate this agreement with immediate effect, by delivering notice of the termination to the Client, if the Client fails to pay Compensation on time three times over any 12 month period.

Return of Property

On termination or expiration of this agreement, or on the other party’s request, each party shall return to the other Deliverables originals of the information, documents, equipment, files, and other property, including Intellectual Property, it received from the other party, destroy all copies of the other party’s of the information, documents, equipment, files, and other property, including Intellectual Property, it made, and on the other party’s request, certify to the other party in writing that it destroyed all these copies.

Mitigation

Each party shall use reasonable efforts to mitigate all losses under this agreement.

Effect of Termination

Termination of Obligations

Subject to paragraph “PAYMENT OBLIGATIONS”, on termination or expiration of this agreement, each party’s rights and obligations under this agreement will cease immediately.

Payment Obligations

Even after termination or expiration of this agreement, each party shall pay any amounts it owes to the other party, including payment obligations for services already rendered, work already performed, goods already delivered, or expenses already incurred, and refund any payments received but not yet earned, including payments for services not rendered, work not performed, or goods not delivered, expenses forwarded.

No Further Liability

On termination or expiration of this agreement, neither party will be liable to the other party, except for liability that arose before the termination or expiration of this agreement, or arising after the termination or expiration of this agreement and in connection with sections “CONFIDENTIALITY”, “TAXES”, or “TERMINATION”.

Advice as to Status of Work

On termination or expiration of this agreement or of a particular Statement of Work, Company shall inform the Client of the status of the performance of the Deliverables under any Statements of Work still in effect, and on the Client’s request, provide the Client with any unfinished Deliverables, including any work in progress, under a terminated Statement of Work.

Termination Assistance Services

Unless the Company terminates this agreement or a Statement of Work for the Client‘s material breach, the Company shall cooperate with the Client to design and provide termination assistance services to the Client for a period not to exceed three months following termination of the agreement or the particular Statement of Work, on terms that are fair and commercially reasonable and generally commensurate and consistent with leading industry practices concerning the provision of transition assistance and cooperation services for services similar to the Deliverables.

Transition Plan

On the Client‘s request, the Company shall develop and provide to the Client for approval, and once Client approves, monitor and regularly update, a detailed transition plan to provide for an orderly transition on termination that includes, among other things, a transition timeline and particulars of the resources to be assigned to implement the transition plan.

Transition of Services

On termination of this agreement for any reason, the Company shall cooperate with the Client and the Client’s replacement service provider to provide for an orderly transition of the Deliverables, and as part of the transition plan referred to in paragraph “TRANSITION PLAN”, or otherwise as to the Deliverables requires, deliver over to the Client documentation reasonably necessary to transition the Deliverables, but in no case will the Company be required to disclose any of its Confidential Information or Intellectual Property under this paragraph.

Indemnification

Mutual Indemnification 

Each party (as an indemnifying party) shall indemnify the other (as an indemnified party) against all losses arising out of any proceeding brought by either a third party or an indemnified party, arising out of the indemnifying party’s willful misconduct or gross negligence, and must notify within fourteen days or less from the occurrence.

Notice and Failure to Notify

Notice Requirement

Before bringing a claim for indemnification, the indemnified party shall notify the indemnifying party of the indemnifiable proceeding, and deliver to the indemnifying party legal pleadings and other documents reasonably necessary to indemnify or defend the indemnifiable proceeding.

Failure to Notify

If the indemnified party fails to notify the indemnifying party of the indemnifiable proceeding within seven days of intent to pursue, the indemnifying party will be relieved of its indemnification obligations to the extent it was prejudiced by the indemnified party’s failure.

Authority to Contest, Pay, or Settle 

The indemnifying party may contest, pay, or settle the proceeding without obtaining the indemnified party’s consent, only if the indemnifying party’s decision does not require the indemnified party to make any admission that it acted unlawfully, does not affect any other legal proceeding against the indemnified party, provides that the indemnifying party will pay the claimant’s monetary damages in full, and requires claimant release the indemnified party from all liability related to the proceeding. 

Exclusive Remedy

 The Parties’ rights to indemnification is the exclusive remedy available in connection with the indemnifiable proceedings described in this section “INDEMNIFICATION”.

Limitation on Liability

Neither party will be liable for breach-of-contract damages that are remote or speculative, or that the breaching party could not reasonably have foreseen on entry into this agreement.

Definitions 

“Affiliate” of any Person means, at the time the determination is made, any other Person that, directly or indirectly, controls, is controlled by, or is under common control with that Person. 

“Books and Records” means all books and records, including books of account, ledgers and general, financial and accounting records, machinery, and equipment maintenance files, lists of Parties to and prospects for franchise agreements, supplier lists, production data, quality control records and procedures, customer complaints, inquiry files, research, development files, records, data (including all correspondence with any Governmental Authority), sales material and records (including pricing history and sales and pricing policies and practices), strategic plans, marketing and promotional surveys, and material, research, and files relating to Intellectual Property. 

“Business Day” means a day other than a Saturday, a Sunday, or any other day on which the principal banks located in New York, New York are not open for business. 

“Compensation” is defined in section “COMPENSATION”.

“Current Term” is defined in section “TERM”.

“Data” means all information of, about, or relating to Client, including information the Client provides to the Company in connection with the Deliverables, the Company learns about the Deliverables arising directly or indirectly from the Client’s performance of the Deliverables, and any of the Client’s Confidential Information.

“Disaster” is defined in section “BUSINESS CONTINUITY AND DISASTER RECOVERY PLANS”.

“Effective Date” is defined in the introduction to this agreement.

“Equipment” means, for either party, the computer and telecommunications equipment owned by that party used in connection with providing and/or receiving the Deliverables.

“Initial Term” is defined in section “TERM”.

“Inspection Period” is defined in “ACCEPTANCE AND REJECTION”.

“Intellectual Property” means any and all of the following in any jurisdiction throughout the world trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing, copyrights, including all applications and registrations related to the foregoing, trade secrets and confidential know-how, patents and patent applications, websites and internet domain name registrations, and other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys’ fees for past, present, and future infringement, and any other rights relating to any of the foregoing). 

“Law” means any law (including the common law), statute, bylaw, rule, regulation, order, ordinance, treaty, decree, judgment, and any official directive, protocol, code, guideline, notice, approval, order, policy, or another requirement of any governmental authority having the force of law from a city, municipal, state, or federal level.

“Non-Solicitation Period” is defined in section “MUTUAL NON-SOLICITATION”.

“Person” includes any corporation, company, limited liability company, partnership, governmental authority, joint venture, fund, trust, association, syndicate, organization, or other entity or group of persons, whether incorporated or not, and any individual.

“Project Manager” is defined in section “MANAGEMENT”.

“Renewal Term” is defined in section “TERM”.

“Representative” means, for any Person, that Person’s directors, officers, shareholders, owners, partners, employees, agents, professional advisors, in connection with the transactions contemplated in this agreement, and any other authorized representatives. 

“Services” is defined in section “SERVICES”.

“Software Deliverable” is defined in section “SOFTWARE DELIVERABLE AND LICENSE GRANT”.

“Statement of Work” is defined in section “SERVICES”.

“Subsidiaries” means any legal entity that a party owns more than 50% of the entity’s outstanding voting securities or equity interests, or of which a party is a general partner (excluding partnerships in which such party or any Subsidiary of such party does not have a majority of the voting interests in such partnership).

“Taxes” includes all taxes, assessments, charges, duties, fees, levies, and other charges of governmental authority, including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, value-added and all other taxes of any kind for which a party may have any liability imposed by any governmental authority, whether disputed or not, any related charges, interest or penalties imposed by any governmental authority, and any liability for any other person as a transferee or successor by law, contract or otherwise.

Dispute Resolution

Arbitration

Any dispute or controversy arising out of this agreement will be settled exclusively by arbitration in Oregon, in accordance with the rules of the American Arbitration Association then in effect by one arbitrator.

Judgment

Judgment may be entered on the arbitrator’s award in any court having jurisdiction. The arbitrator will not have the power to award any punitive or consequential damages.

Entire Agreement

The Parties intend that this agreement, together with all attachments, schedules, exhibits, and other documents that both are referenced in this agreement and refer to this agreement, represent the final expression of the Parties’ intent relating to the subject matter of this agreement, contain all the terms the Parties agreed to relate to the subject matter, and replace all of the Parties’ previous discussions, understandings, and agreements relating to the subject matter of this agreement.

Provide Assurances On Notice

Each party, on receipt of notice from the other party, shall sign or cause to be signed all further documents, do or cause to be done all further acts, and provide all assurances as may reasonably be necessary or desirable to give effect to the terms of this agreement.

Counterparts

This agreement may be signed in any number of counterparts, each of which is an original and all of which taken together form one single document. Signatures delivered by email in PDF format or facsimile shall be effective.

Amendment 

This agreement can be amended only in writing signed by both Parties.

Binding Effect

This agreement will benefit and bind the Parties and their respective heirs, successors, and permitted assigns.

Relationship of the Parties

No Relationship

Nothing in this agreement creates any special relationship between the Parties, such as a partnership, joint venture, or employee/employer relationship between the Parties.

No Authority

Neither party will have the authority to, and will not, act as agent for or on behalf of the other party or represent or bind the other party in any manner.

No Third-Party Beneficiaries

Unless explicitly stated otherwise elsewhere in this agreement, no Person other than the Parties themselves has any rights or remedies under this agreement.

Assignment

Neither party may assign this agreement or any of their rights or obligations under this agreement without the other party’s written consent.

Notices

Method of Notice

The Parties shall give all notices and communications between the Parties in writing by (i) personal delivery, (ii) first-class registered or certified mail, postage prepaid, or (iii) electronic mail to the party’s address specified in this agreement, or to the address that a party has notified to be that party’s address for the purposes of this section.

Receipt of Notice

A notice given under this agreement will be effective on the other party’s receipt of it or confirmation of delivery verified by a third-party courier service.

Governing Law

This agreement shall be governed, construed, and enforced in accordance with the laws of the State of Oregon.

Waiver of Jury Trial

Each party hereby irrevocably waives its rights to trial by jury in any action or proceeding arising out of this agreement or the transactions relating to its subject matter.

Force Majeure

A party shall not be liable for any failure of or delay in the performance of this agreement for the period that such failure or delay is beyond the reasonable control of a party, materially affects the performance of any of its obligations under this agreement, and could not reasonably have been foreseen or provided against, but will not be excused for failure or delay resulting from only general economic conditions or other general market effects.

Waiver

Affirmative Waivers

Neither party’s failure or neglect to enforce any rights under this agreement will be deemed to be a waiver of that party’s rights.

Written Waivers

A waiver or extension is only effective if it is in writing and signed by the party granting it.

No General Waivers

A party’s failure or neglect to enforce any of its rights under this agreement will not be deemed to be a waiver of that or any other of its rights.

No Course of Dealing

No single or partial exercise of any right or remedy will preclude any other or further exercise of any right or remedy.

Severability

If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.

Interpretation

References to Specific Terms
Accounting Principles

Unless otherwise specified, where the character or amount of any asset or liability, item of revenue, or expense is required to be determined, or any consolidation or other accounting computation is required to be made, that determination or calculation will be made in accordance with the generally accepted accounting principles defined by the professional accounting industry in effect in the United States (“GAAP”).

Currency

Unless otherwise specified, all dollar amounts expressed in this agreement refer to American currency.

“Including”

Where this agreement uses the word “including,” it means “including without limitation,” and where it uses the word “includes,” it means “includes without limitation.”

“Knowledge”

Where any representation, warranty, or another statement in this agreement, or in any other document entered into or delivered under this agreement, is expressed by a party to be “to its knowledge,” or is otherwise expressed to be limited in scope to facts or matters known to the party or of which the party is aware, it means: the then-current, actual knowledge of the directors and officers of that party, and the knowledge that would or should have come to the attention of any of them had they investigated the facts related to that statement and made reasonable inquiries of other individuals reasonably likely to have knowledge of facts related to that statement.

Statutes, etc

Unless specified otherwise, any reference in this agreement to a statute includes the rules, regulations, and policies made under that statute and any provision that amends, supplements, supersedes, or replaces that statute or those rules or policies.

Number and Gender

Unless the context requires otherwise, words importing the singular number include the plural and vice versa; words importing gender include all genders.

Headings

The headings used in this agreement and its division into sections, schedules, exhibits, appendices, and other subdivisions do not affect its interpretation.

Internal References

References in this agreement to sections and other subdivisions are to those parts of this agreement.

Calculation of Time

In this agreement, a period of days begins on the first day after the event that began the period and ends at 5:00 p.m. Pacific Standard Time on the last day of the period. If any period of time is to expire, or any action or event is to occur, on a day that is not a Business Day, the period expires, or the action or event is considered to occur, at 5:00 p.m. Pacific Standard Time on the next Business Day.

Construction of Terms

The Parties have each participated in settling the terms of this agreement. Any rule of legal interpretation to the effect that any ambiguity is to be resolved against the drafting party will not apply in interpreting this agreement.

Attorney Fees

If either party enter an action to enforce their rights under this agreement, the prevailing party may recover its expenses (including reasonable attorneys’ fees) incurred in connection with the Action and any appeal from the losing party.

Acknowledgment of Terms

Each party acknowledges that they have read this agreement, understand the terms of this agreement, have had the opportunity to consult and have consulted with independent legal counsel in connection with this agreement, and have signed this agreement voluntarily.

Permits

Holding

Each party holds all Permits necessary for it to execute this agreement and perform its obligations under this agreement.

No Suspension

Neither party’s Permits are subject to any, pending (or, to the respective party’s knowledge, threatened) material suspension or cancellation.

Compliance

To each party’s respective Knowledge, each party, and their respective Subsidiaries, is complying and has complied with the terms of all its Permits, except for non-compliance that would not reasonably be expected to have a Material Adverse Effect.

Agreement Updates

We may update this Service Agreement from time to time at our discretion and will notify you of any material changes. When changes are made, we will revise the updated date at the bottom of this page and we will email you. Any updated version of this Service Agreement will be effective immediately upon the posting of the revised Service Agreement unless otherwise specified.

This page was last updated on December 14, 2021.