ABDIEL STANDARD TERMS
Master Services Agreement
The terms and conditions set forth herein (the “Standard Terms”) will solely and exclusively control any Master Service Agreement for Information Technology Consulting (the “Agreement”) entered into by you (the “Consultant”) and Abdiel Capital Advisors, LP and any of its subsidiaries or affiliates (collectively the “Client”).
1. Definitions. Whenever used in this Standard Terms with the initial letter capitalized the following terms will have the following specified meanings:
1.1. “AAA” means the American Arbitration Association or another arbitration service agreed upon by the parties.
1.2. “Affiliate” means, as to a Party, any other Person that directly or indirectly controls, is controlled by, or is under common control with such Party. The term “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) as applied to any Person means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or other ownership interest, by contract, or otherwise.
1.3. “Change in Control” means the (i) consolidation or merger of a Party with or into any entity (other than the consolidation or merger of a Party with an Affiliate of such Party in which such Party is the surviving entity of such consolidation or merger), (ii) sale, transfer or other disposition of all or substantially all of the assets of a Party, or (iii) acquisition of beneficial ownership of more than fifty percent (50%) of the outstanding voting securities or other ownership interests of a Party.
1.4. “Consultant Personnel” means the authorized employees, agents, representatives, advisors, directors, officers and contractors of Consultant and Consultant’s Affiliates.
1.5. “Consultant Proprietary Item” means any work, materials, or other tangible or intangible property proprietary to Consultant and/or used by it in the course of its performance under this Agreement or any Statement of Work and that is (i) not a Deliverable, or (ii) developed independently of this Agreement, including proprietary items owned prior to the Effective Date. Inclusion of any Consultant Proprietary Item in a Deliverable does not change its character as a Consultant Proprietary Item, although it will be subject to the terms of Section 14.4 (License to Consultant Proprietary Items).
1.6. “Confidential Information” means any trade secrets or other information that is not generally available to the public, that is conspicuously marked or otherwise identified as confidential or proprietary upon receipt by the Recipient or the Recipient otherwise knows or has reason to know that the same is Confidential Information of the Discloser, that is proprietary or trade secret information of Discloser or any information that a Party is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party). Confidential Information may be of a technical, business or other nature (including, but not limited to, information which relates to a Party’s technology, research, development, products, services, pricing of products and services, customers, employees, contractors, marketing plans, finances, contracts, legal affairs, or business affairs). However, Confidential Information does not include any information that: (a) was known to the Recipient prior to receiving the same from the Discloser in connection with this Agreement; (b) is independently developed by the Recipient without reference to the Confidential Information of the Discloser; (c) is acquired by the Recipient from another source without restriction as to use or disclosure; or (d) is or becomes known to the public through no fault or action of the Recipient.
1.7. “Client Data” means all data, information, files, text, or other materials or content, embodied in any medium including electronic, optical, magnetic or tangible media, provided by or on behalf of Client to Consultant in connection with the Agreement, including data submitted to Consultant before the Effective Date, and all data, information, files, text, or other materials or content derived from such data.
1.8. “Client-Furnished Item” means any computers, software, office space, desks, furniture, facilities, utility service (e.g., electric, telephone or communications), equipment, component, part, supplies, materials, computer program, documentation, Client Data, goods, services or other items provided or to be provided by Client or any third party on behalf of Client.
1.9. “Deliverables” means any work, materials, or other tangible or intangible property identified in the applicable Statement of Work as “Deliverables.”
1.10. “Deliverable Review Notice” has the meaning set forth in Section 3.2 (Acceptance).
1.11. “Discloser” means a Party that discloses Confidential Information to the other Party.
1.12. “Intellectual Property” means entire rights, title, and interests in and to all proprietary rights of every kind and nature however denominated, throughout the world, including patent, copyright, trademark, trade secret, databases, business process method or. any and all registrations, applications, recordings, licenses, or rights arising under law or contract relating to any of the foregoing.
1.13. “Person” means any individual, partnership, corporation, limited liability company, unincorporated organization or association, any trust or any other business entity.
1.14. “Recipient” means a Party that receives Confidential Information of the other Party.
1.15. “Services” means services performed or to be performed by Consultant pursuant to any Statement of Work or otherwise under this Agreement.
1.16. “Specifications” means the specifications for any Deliverables as set forth in a Statement of Work.
1.17. “Term” means the term specified under Section 20.1 (Term) in the Agreement.
1.18. “Third-Party Products” means any products, methodologies, tools, materials, computer programs, architecture, design specifications, flowcharts, or software (including, without limitation, any object code, source code, tool, utility or template), or other tangible or intangible item licensed or otherwise acquired by Consultant from a third party.
1.19. “Statement of Work” means a written statement of work to this Agreement prepared, agreed upon and signed by the parties during the Term with respect to specific Services and/or Deliverables to be provided by Consultant to Client under this Agreement.
2. Commencement of Provision of Service. Prior to commencing provision of any Service under the Agreement or Statement of Work, Consultant will establish, with evidence reasonably acceptable to Client, full adherence to and compliance with the terms of the agreements.
3. Delivery and Acceptance.
3.1. Delivery. Delivery of the Deliverables will be made as specified in the applicable Statement of Work.
3.2. Acceptance. The standard for acceptance of a Deliverable will in all instances be material conformance with the agreed upon specifications pertaining to the Deliverable set forth in the Statement of Work, as reasonably determined by Client. Except as expressly agreed in a Statement of Work, Client will have a review period of: (i) ten (10) business days after submission by Consultant of Deliverable(s). Before the expiration of such review period, Client will submit a written statement to Consultant indicating acceptance or specifying concisely how the submitted Deliverable fails to materially conform to the agreed specifications (“Deliverable Review Notice”). Deliverables will be deemed to be rejected by Client in the event Client has not submitted such Deliverable Review Notice to Consultant before the expiration of the applicable review period.
3.3. Non-Conformities. In the event that material nonconformities are cited in a rejection, Consultant will have a commercially reasonable amount of time, in no case longer than thirty (30) days, to make the required corrections. Upon resubmission of the Deliverable, the review periods cited in this paragraph will recommence. Consultant’s failure to timely correct and resubmit a Deliverable, or the failure of a Deliverable to conform to material specification after two (2) attempts at delivery will be deemed to be a delivery failure and a material breach of the Agreement.
4. Payment Terms.
4.1. Fees. Each Statement of Work will specify the fees for the Services and Deliverables to be provided under such Statement of Work.
4.2. Invoices. Consultant will invoice Client for Services and Deliverables set forth in a Statement of Work only upon completion of all Services and Delivery and acceptance by Client of all Deliverables. All invoices will include a sufficient level of detail and will be supported by sufficient documentation to enable Client to verify the accuracy of all fees charged by Consultant.
4.3. Payment Schedule. Client will pay Consultant undisputed fees for an invoice within net thirty (30) days of receipt of such invoice.
4.4. Currency. All fees in an invoice will be stated and all payments made under this Agreement will be in United States Dollars.
4.5. Limitation on Client Payment Obligation. Except as otherwise specified in the applicable Statement of Work, Client’s sole obligation to Consultant will be the payment of fees upon Consultant’s completion of all Services and Delivery of all Deliverables to Client’s reasonable satisfaction, and Consultant will bear and pay all costs and expenses associated with the performance of the Services and delivery of the Deliverables.
5.1. Ownership. Except for any license or other right expressly granted under this Agreement or any Statement of Work, each Party reserves any and all right, title and interest (including, without limitation, any IPR) that it may have in or to any Confidential Information that it may disclose to the other Party under this Agreement or any Statement of Work.
5.2. Diligence Obligation. Consultant will protect Client’s Confidential Information against any unauthorized use or disclosure to the same extent that Consultant protects its own Confidential Information against unauthorized use or disclosure. Consultant will not disclose Client Confidential Information to anyone other than to applicable the directors, officers, managers, employees, consultants or agents of Consultant who need to have access to such information to perform obligations under or enjoy the benefits of the Agreement and the Statements of Work. At a minimum Consultant will only disclose Client’s Confidential Information to persons who have signed a binding non-disclosure agreement or are under a binding employment policy limiting the disclosure and use of such Confidential Information. Consultant will, and will cause all Consultant Personnel that perform any Services under the Agreement or Statement of Work, to abide by all Client policies relating to the security or confidentiality of Client’s Confidential Information.
5.3. Permitted Use of Confidential Information. Consultant will use Client’s Confidential Information only for the purposes contemplated in the Agreement and the applicable Statement of Work.
5.4. Restriction on Trading. Consultant acknowledges that the Confidential Information provided by Client may include material non-public information as well as the Confidential Information of Client regarding its investment decisions, plans and strategies. Consultant will not purchase or sell (or cause to be purchased or sold) securities of any company or any other traded instrument or interest based upon or making any use of any Confidential Information that Consultant acquires or gains access to through its performance of Services for Client.
5.5. Duration of Obligations. The obligations set forth in this Section 5 (Confidentiality) with respect to Confidential Information will continue for so long as Client maintains and protects the confidential status of such information and such information remains relevant to any aspect of Client’s business.
5.6. Exceptions. This Section 5 (Confidentiality) will not be interpreted or construed to prohibit: (a) any use or disclosure which is necessary or appropriate in connection with the Recipient’s performance of its obligations or exercise of its rights under this Agreement or any Statement of Work or any other agreement between the Parties; (b) any use or disclosure required by applicable law (e.g. pursuant to applicable securities laws or legal process), provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof (e.g., so as to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure); or (c) any use or disclosure made with the consent of the Discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this Section 5 (Confidentiality), the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations.
6. Safeguarding of Client Data.
6.1. Ownership of Client Data. Client owns and will continue to own all rights, title and interests in and to all Client Data. Consultant and Consultant Personnel may not use Client Data for any purpose except to provide the Services and Deliverables, nor may Consultant or Consultant Personnel sell, assign, lease or otherwise dispose of or commercially exploit Client Data or any part of thereof.
6.2. Segregation, Modification and Destruction of Data. Consultant will not modify, delete or destroy any Client Data or media on which Client Data resides without prior written consent from Client, provided that ordinary backup activities, data destruction consistent with data retention and destruction policies, and other data management activities consistent with reasonable commercial practice will not be deemed a violation of this Section 6 (Safeguarding of Client Data). Consultant will: (i) adequately mark all Client Data as Client’ property; (ii) adequately mark all Client Data as “confidential”; (iii) store all Client Data separately from Consultant’s data and information; and (iv) promptly remove any or all of the Client Data, as specified by Client, from all Consultant-maintained databases, hardware, and network equipment at Client’ request.
7. Information Security. At all times during the Term of the Agreement and any Statement of Work, Consultant will comply with the information security requirements set forth in Exhibit B and any subsequent amendments to such requirements. Consultant will employ reasonable information security measures with respect to systems of Consultant to safeguard against breach, destruction, loss or alteration of Client Data in the possession of Consultant.
8. Nonsolicitation. During the Term of this Agreement and for one (1) year thereafter, Consultant will not, without the prior written consent of Client, solicit or offer employment to or employ any person employed then or within the preceding six (6) months by Client or any Affiliate of Client with whom Consultant came into contact in connection with the activities contemplated by this Agreement.
9. No Publicity. Consultant agrees not to disclose the identity of Client or its Affiliates or any of their directors, officers, managers, employees, consultants or agents as a customer or prospective customer of Consultant or the existence or nature of this Agreement. Without limiting the generality of the foregoing, Consultant will not use, in advertising, publicity or otherwise, the name of Client or its Affiliates or any of their directors, officers, managers, employees, consultants or agents or any trade name, trademark, service mark, logo or symbol of Client or its Affiliates or any description of Services and Deliverables provided to Client or its Affiliates under the Agreement
10. Location of Services Performed. Consultant will perform the Services within the borders and jurisdiction of the United States. Consultant will not ship, store, transfer, or export any Client Data outside the borders and jurisdiction of United States, including any backups or copies. Upon request of Client, Consultant will provide a list of the locations where Client Data is stored. If Consultant cannot provide the Service without violating this Section 10 (Location of Services Performed), Consultant will seek express written permission from Client to override applicable terms in this Section 10 (Location of Services Performed) prior to engaging in the provision of such Service and perform such Service only after receipt of such permission.
11. Insurance. During the Term, Consultant will maintain insurance coverage with reputable and financially responsible insurance companies or associations acceptable to Client in such amounts and covering such risks as are usually carried by companies engaged in the same or a similar business. Such insurance coverage will include cyber insurance and business disruption insurance. Neither the requirements that Consultant obtain insurance nor Consultant’s compliance with those requirements will constitute a limitation on Consultant’s liability with respect to any matter arising under or relating to this Agreement.
12. Client Responsibilities.
12.1. Client Tasks. In connection with the provision of Services by Consultant, Client will perform those tasks and fulfill those responsibilities specified in the applicable Statement of Work as well as those specified in this Section 12 (Client Responsibilities).
12.2. Access to Client-Furnished Items. Client will provide Consultant access to Client-Furnished Items as reasonably required for the performance of the Services and other obligations of. Consultant in accordance with the applicable Statement of Work and the Agreement.
12.3. Protection of Consultant Proprietary Items. Client will take appropriate steps and precautions for the protection of Consultant Proprietary Items.
12.4. Client Contact Person. Client will designate in each Statement of Work one or more persons who will act as principal liaison(s) with Consultant with respect to the Services and who will be responsible for acceptance of Deliverables where applicable.
13.1. Personnel Identification. Consultant will assign the number of Consultant Personnel necessary to perform the Services and provide the Deliverables in accordance with the service levels set forth in a Statement of Work. Consultant will identify, in each Statement of Work, Consultant Personnel assigned to perform the Services and provide the Deliverables and the role that has been allocated to each such Consultant Personnel.
13.2. Approval. Consultant will obtain Client’s written approval of each Consultant Personnel prior to allowing such Consultant Personnel to perform any Services for Client under a Statement of Work. At any time, Client may, at its absolute discretion, request the removal of any Consultant Personnel performing Services. The Supplier must remove such Consultant Personnel and provide a replacement reasonably acceptable to Client, at no additional charge, and at the earliest opportunity.
13.3. Personnel Expenses. Consultant will be solely responsible for all costs and expenses associated with all Consultant Personnel, including but not limited all salary, benefits, and taxes due or associated with any Consultant Personnel.
13.4. Consultant Contact Person. Consultant will designate in each Statement of Work one Consultant Personnel who will act as principal liaison with Client with respect to the Services. Consultant will ensure that such Consultant Personnel is knowledgeable about the Services performed under the Statement of Work and has suitable seniority, responsibility, and decision-making authority to make decisions and address any issues arising out of such Statement of Work.
14. Intellectual Property Ownership, License Grant.
14.1. Pre-Existing and Independent Materials. Each Party owns, and will continue to own all rights, title and interests in and to any Intellectual Property that it owned prior to the Effective Date, or that it created or acquired independently of its dealings with the other Party pursuant to the Agreement. All rights in Property not expressly transferred or granted herein are reserved to the owner.
14.2. Work Made for Hire. Consultant agrees that the Services and Deliverables performed and delivered pursuant to this Agreement and each Statement of Work are considered “work made for hire” as defined in 17 U.S.C. § 101, and ownership of any Intellectual Property contained therein immediately vests solely and exclusively in the Client upon creation.
14.3. Assignment. To the extent any of the Services and Deliverables is not deemed a “work made for hire” by operation of law, Consultant hereby assigns (and to the extent such assignment can only be made in the future hereby agrees to assign), without further consideration, all of its rights, title and interests in and to such Services and Deliverables, including all Intellectual Property contained therein. Consultant will execute, and will cause Consultant Personnel to execute, any documents or take any other actions as may reasonably be necessary, or as Client may request, to perfect Client’s ownership of any Services and Deliverables.
14.4. License to Consultant Proprietary Items. To the extent any Consultant Proprietary Items are incorporated into a Service or a Deliverable, Consultant hereby grants to Client an irrevocable, perpetual, worldwide, nonexclusive, royalty-free, fully paid, sub-licensable license to use Consultant Proprietary Items in connection with the operation of such Services and Deliverables.
14.5. Third-Party Products Restrictions and Limitations. Any commercial off-the-shelf product of Consultant or a Third-Party Product, which is provided pursuant to the Agreement or Statement of Work, will be licensed to Client according to the terms of the end user license agreement packaged with such product.
14.6. Special Terms. Notwithstanding the provisions in this Section 14 (Intellectual Property Ownership, License Grant), Consultant and Client may enter into special arrangements for ownership of and licenses Intellectual Property contained in Services and Deliverables provided under any Statement of Work by express written agreement in such Statement of Work.
15. Representation and Warranties.
15.1. Authority. Consultant represents, warrants and covenants to Client: that it has the authority to enter into the Agreement and Statements of Work and perform its obligations thereunder.
15.2. Performance. Consultant represents, warrants and covenants to Client that (i) Services will be rendered and all Deliverables will be prepared and delivered in a workmanlike manner with a level of skill and care appropriate to the task and, in no event, less than reasonable skill and care; (ii) Deliverables will perform in all material respects with the applicable Specifications. Consultant will use commercially reasonable efforts to correct any Services or Deliverables that do not comply with the warranties set forth in this Section (e.g., by reperformance of any noncomplying Services or the modifying any noncomplying Deliverables); provided that Client gives Consultant written notice of the noncompliance within thirty (30) days of receipt of such Services or Deliverables. If, after the expenditure of commercially reasonable efforts, Consultant is unable to correct the noncompliance, Consultant will refund an equitable portion (e.g., based upon the value of Client’s actual use of, or any benefits received by Client with respect to, the applicable Services or Deliverables) of the fee paid by Client for such Services and Deliverables.
15.3. Continuing Obligation. Consultant represents, warrants and covenants to Client that the representations Consultant makes in Section 7 (Information Security) and Section 16 (Compliance) are true and correct on the Effective Date and at all times during the Term.
16.1. Compliance with Laws. Consultant will at all times comply with all applicable laws and regulations (including, but not limited to, those relating to privacy, data protection, confidentiality, and information security and further including changes in any applicable law or regulation) in the exercise of its rights and performance of its obligations under the Agreement and any applicable Statement of Work, provided that, notwithstanding anything in the Agreement to the contrary, Consultant will not be required to comply with the laws of any jurisdictions that have not been specified for deployment of the Services in the applicable Statement of Work.
16.2. Foreign Corrupt Practices Act. Consultant represents and warrants that it is aware of, and familiar with, the provisions of the Foreign Corrupt Practices Act of 1977, as amended (collectively, the “FCPA”) and its purposes. Consultant further represents and warrants that it will take no action and make no payment in violation of, or which might cause Consultant or Client to be in violation of, the FCPA. Consultant also represents and warrants that no person employed by it in connection with the performance of its obligations under this Agreement is an official of the government of any foreign country, or an employee or agent of any agency thereof and that no part of any moneys or consideration paid hereunder will accrue for the benefit of any such official.
16.3. No Inducement. Consultant represents that it has not, and will not: (i) offer or agree to give any person working for or engaged by Client or any third party (including any public official) any gift or other consideration which could act as an inducement or reward for any act or failure to act in connection with the Agreement or any other agreement between Consultant and Client or any third party, including its award to either Party’s Affiliate and any of the rights and obligations contained within it; nor (ii) enter into the Agreement if it has knowledge that, in connection with the Agreement, any money has been, or will be, paid to any person working for, or engaged by, Client or any third party (including any public official) by or for Client or its Affiliate, or that an agreement has been reached to that effect.
16.4. Background Checks. Consultant will ensure that all Consultant Personnel performing Services for Client are properly trained and eligible for employment or to perform such services as required by applicable law. Consultant will, at its sole expense, conduct pre-employment screening, including OFAC clearance and criminal background checks as appropriate for the job/services performed, and ongoing review and oversight of all Consultant Personnel performing Services for Client in accordance with Consultant’s own internal policies and in compliance with applicable law. Consultant acknowledges that it will have a continuing obligation to re-screen any Consultant Personnel performing Services for Client to ensure compliance with this Section 16.4 (Background Checks) and will re-screen each Consultant Personnel at least once per year. On an annual basis, Consultant’s human resources manager for the Agreement will certify that the background check required by this Section 16.4 (Background Checks) has been conducted in respect of all Consultant Personnel assigned by Consultant to perform Services under the Agreement. Consultant will obtain all releases, waivers, or permissions required for the release of such background check information to Client.
16.5. Equal Opportunity. Consultant will abide by all applicable law prohibiting discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibiting discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin.
16.6. Insider Trading. Consultant acknowledges that applicable law prohibits any person or entity from: (i) trading any securities (including stocks, bonds, options or any other securities) when that person or entity has material, nonpublic information about those securities, or (ii) disclosing material, non-public information to any other person or entity that may sell or purchase those securities.
16.7. Government Investigations. Each Party may freely participate and cooperate with investigations of governmental authorities, provided that, to the extent legally permissible, prior written notice must be given to the other Party allowing such Party to raise any applicable objections to such participation.
16.8. Changes in Applicable Law. In the event that the performance of one or more obligations under this Agreement or a Statement of Work is rendered illegal, impractical or materially more expensive as the result of a change in applicable law or in the binding interpretation thereof by any relevant governmental authority (any of the foregoing, a “Change in Law”), then the Parties will meet and confer with the purpose of agreeing upon the amendment of such obligation(s) to enable the performance of such obligation(s) in compliance with applicable law and in a manner that realizes the objectives of the Parties when entering this Agreement. If the Parties fail to reach such an agreement sufficiently in advance of the mandatory effective date of such change (after the expiration of all applicable grace periods or other extensions) to permit each Party to implement its portion of the agreed-upon solution prior to the mandatory effective date, then the performance of such obligation(s) will be excused upon the mandatory effective date, provided that in the event such excused performance or Change in Law results in or causes a material breach or degradation in such Party’s performance of its obligations under this Agreement then the other Party may terminate this Agreement upon thirty (30) days’ prior written notice, without penalty. Notwithstanding any provision of this Agreement or any Statement of Work to the contrary, nothing in this Agreement or any Statement of Work will be deemed to require either Party to take, or refrain from taking, any action that such Party reasonably determines, after discussion with legal counsel (which may be in-house counsel), would cause such Party or its Affiliates to violate any applicable law.
17. Audit Rights.
17.1. Compliance Audit. Upon reasonable prior notice, Consultant will permit Client and its external auditors and agents, at no additional expense to Client, to conduct an audit to determine Consultant’s compliance with the Agreement and any Statements of Work. The frequency and scope of these compliance audits will be determined by Client in its sole discretion.
17.2. Audit of Fees. Upon reasonable prior notice, Consultant will permit Client and its external auditors and agents, at no additional expense to Client, to access Consultant’s books and records at a mutually agreeable time and place to perform an audit to the extent necessary to verify Consultant’s charges to Client under the Agreement and any Statements of Work. If an audit reveals that Consultant has overcharged Client for any Services performed during the audit period, Consultant will pay Client:(i) all amounts overpaid by Client plus interest of 3%; and (ii) all reasonable costs and expenses incurred by Client in conducting the audit.
17.3. Security Audit. At any time, upon reasonable notice, Client may engage any contractor or organization that Client may deem suitable to conduct an audit of the environment used to provide the Services and Deliverables, including security, policies, and operational matters. Any such audit will be scheduled so as to minimize the disruption to Consultant’s business operations. Consultant will, at no additional cost or expense to Client: (i) provide any auditor designated by Client with all assistance and resources reasonably required to conduct any security audit authorized pursuant to this Section 17.3 (Security Audits); and (ii) immediately correct any deficiencies identified during any such security audit.
18. Indemnification. Consultant will indemnify, defend, and hold Client and its Affiliates harmless from and against any and all claims, causes, and allegations (whether threatened or pending), damages, orders, judgments and other remedies, costs, fees, and expenses (including reasonable attorneys’ fees), losses and liabilities arising out of or relating to: (i) misappropriation, violation or infringement by the Services or Deliverables of any Intellectual Property rights of any third party; (ii) violation of any applicable law by the Services or Deliverables; (iii) breach of Section 5 (Confidentiality) by Consultant or any Consultant Personnel; or (iv) breach of Section 6 (Safeguarding of Client data).
19. Limitations of Liability.
19.1. Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under the Agreement on account of, any delay or failure to perform as required by the Agreement as a result of any cause or condition beyond such Party’s reasonable control (including, but not limited to: fire, explosion, earthquake, storm, flood, wind, drought and act of God or the elements; court order; act, delay or failure to act by civil, military or other governmental authority; strike, lockout, labor dispute, riot, insurrection, sabotage and war; unavailability of required parts, materials or other items; and act, delay or failure to act by the other Party or any third party); provided that such Party uses its best efforts to promptly overcome or mitigate the delay or failure to perform. Any Party whose performance is delayed or prevented by any cause or condition within the purview of this Section will promptly notify the other Party thereof, the anticipated duration of the delay or prevention, and the steps being taken to overcome or mitigate the delay or failure to perform. This Section will not apply to any monetary obligation of either Party.
19.2. No Consequential Damages. EXCEPT WITH RESPECT TO A PARTY’S FRAUD, WILLFUL MISCONDUCT, GROSS NEGLIGENCE, ANY BREACH OF OBLIGATIONS UNDER SECTION 5 (CONFIDENTIAL INFORMATION) AND ANY BREACH OF OBLIGATIONS UNDER SECTION 6 (SAFEGUARDING OF CLIENT DATA), NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES OR FOR ANY LOSS OF PROFIT, REVENUE, DATA, BUSINESS OR USE WHETHER IN CONTRACT OR TORT WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED OR IS REASONABLY FORESEEABLE.
19.3. Limitation of Liability. EXCEPT WITH RESPECT TO A PARTY’S FRAUD, WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE, ANY BREACH OF OBLIGATIONS UNDER SECTION 5 (CONFIDENTIAL INFORMATION) AND ANY BREACH OF OBLIGATIONS UNDER SECTION 6 (SAFEGUARDING OF CLIENT DATA), NEITHER PARTY’S LIABILITY WITH REGARD TO ANY SERVICES, DELIVERABLES, CONSULTANT PROPRIETARY ITEMS OR CLIENT FURNISHED ITEMS (AS APPROPRIATE) OR ANY OTHER ITEMS FURNISHED UNDER THIS AGREEMENT OR ANY STATEMENT OF WORK OR OTHER OBLIGATION HEREUNDER (AS APPLICABLE) WILL EXCEED THREE (3) TIMES THE COMPENSATION PAID OR DUE AND OWING BY CLIENT TO CONSULTANT UNDER THIS AGREEMENT, INCLUDING ALL STATEMENTS OF WORK.
20. Term and Termination.
20.1. Term. The Term will be as specified in the Agreement.
20.2. Termination for Convenience. Client may terminate the Agreement, in whole or in part, at its convenience, effective at 11:59 p.m. (Eastern Time) on the intended date of termination, by delivering to Consultant notice of termination at least thirty (30) days before the intended date of termination.
20.3. Termination for Material Breach. If Consultant materially breaches this Agreement or any Statement of Work and fails to cure that default within thirty (30) days after receiving notice specifying the breach, then Client may at its option, by giving notice of the breach to Consultant, terminate (1) the Agreement and all Statements of Work, (2) one or more Statements of Work or (3) any portion of the Services that is materially impacted by such breach.
20.4. Termination for Nonpayment. If, during the Term, Client defaults in the payment when due of any material amount and does not within sixty (60) days after receiving notice of the default either (1) cure the default, or (2) dispute any such amounts in good faith, then Consultant may, by giving notice of the default to Client, terminate the Service or Statement of Work for which payment was breached as of the date specified in the notice of termination. Consultant’s right to give a termination notice under this Section 20.4 (Termination for Nonpayment) will expire once Client becomes current in its payment obligations with respect to the applicable Service.
20.5. Immediate Termination for Breaches of Security, Confidentiality, and Non-Compliance Obligations. Notwithstanding any provision of the Agreement or any Statement of Work to the contrary, Client may terminate the Agreement and all Statement of Work immediately if Consultant breaches or any Consultant’s Personnel cause Consultant to breach any of Consultant’s obligations pursuant to Section 5 (Confidentiality), Section 6 (Safeguarding of Client Data), Section 7 (Information Security) and Section 16 (Compliance).
20.6. Immediate Termination for Insolvency. Notwithstanding any provision of the Agreement or any Statement of Work to the contrary, either Party may terminate this Agreement and all Statement of Work immediately, if the other Party becomes insolvent, makes an assignment for the benefit of creditors, files for bankruptcy, or ceases to do business.
20.7. Immediate Termination for Change in Control of Consultant. In the event of a Change in Control of Consultant that results in Consultant coming under direct or indirect control of any entity competing with Client (as determined solely at the discretion of Client), Client may immediately terminate the Agreement and all Statement of Work by sending a termination notice to Consultant.
20.8. Effect of Termination. Upon termination or expiration of the Agreement or any Statement of Work, (i) Parties will cooperate to effect an orderly, efficient, effective and expeditious termination of the Party’s respective activities under the Agreement and applicable Statements of Work; (ii) Consultant will immediately cease and desist from all use of Client-Furnished Items provided by Client to Consultant and return (or at the request of Client, permanently and irretrievably destroy, and certify such destruction in writing) such Client-Furnished Items to Client; and (iii) Client will pay to Consultant any fees or other amounts payable for Services performed under the Agreement and terminated Statements of Work prior to the effective date of the termination.
20.9. Survival. Notwithstanding any provision of the Agreement to the contrary, provisions that are expressly intended to survive termination or expiration of this Agreement will survive and remain in full force and effect, including Section 5 (Confidentiality), Section 8 (Nonsolicitation), Section 9 (No Publicity), Section 14 (Intellectual Property Ownership, License Grant), Section 15 (Representation and Warranties) Section 18 (Indemnification), Section 21 (Dispute Resolution) and Section 22 (Miscellaneous).
21. Dispute Resolution Procedures.
21.1. General. In the event of any dispute between the Parties relating to any interpretation, construction, application or requirement of this Agreement or any Statement of Work, the parties will follow the procedures set forth in this Section 21 (Dispute Resolution), provided that either party may at any time initiate civil litigation in order to request injunctive or other equitable relief necessary to prevent irreparable harm or to maintain the status quo while these dispute resolution procedures are followed. In such event, the parties will (except as may be prohibited by judicial order) nevertheless continue to follow the procedures set forth in this Section 21 (Dispute Resolution).
21.2. Negotiation. All disputes arising under or relating to this Agreement must first be asserted and concisely described (description to give general notice of the nature of the claim is sufficient) in a written communication delivered pursuant to the notice procedures set forth in Section 22.2 (Notice) below. Upon such notice, the Parties will make good faith efforts to have their authorized representatives meet and confer (meeting by phone or video conference will suffice) within fifteen (15) days of the notice date to resolve the matters described by negotiation. In the event such dispute is not resolved within such fifteen (15) day period (or such longer period as the Parties agree to at the time) then either Party may, if it wishes to proceed further, assert the claim through arbitration as set forth below.
21.3. Submission to Arbitration. Either Party may submit the dispute to arbitration under the supervision of and in accordance with the Commercial Arbitration Rules of the AAA.
21.4. Selection of Arbitrator. The Parties will use good faith efforts to agree upon a mutually acceptable arbitrator within twenty (20) days after submission of the dispute to arbitration. If the Parties are unable to agree upon a mutually acceptable arbitrator, then either Party may request the AAA to supply a list of potential arbitrators satisfying the requirements of Section 21.55 (Qualification of Arbitrator) below and such other requirements as the parties may agree upon. Within ten (10) days after receipt of the list, the Parties will independently rank the proposed arbitrators, simultaneously exchange rankings, and select as the arbitrator the individual receiving the highest combined ranking who is available to serve.
21.5. Qualifications of Arbitrator. Any arbitrator under this Section 21 (Dispute Resolution) will be impartial in fact and appearance, not an advocate of any Party. The arbitrator will not have: (a) any direct or indirect financial or personal interest in the outcome of the mediation or arbitration; or (b) any past, present or anticipated financial, business, professional, family, social or other relationship which is likely to affect impartiality or which might reasonably create the appearance of partiality or bias. Any arbitrator under this Section 21 (Dispute Resolution) will be required to disclose to each of the parties any such interest or relationship, and the parties may agree to waive the requirements of the preceding sentence as to any interest or relationship so disclosed.
21.6. Location. Unless otherwise agreed by the parties, any arbitration under this Section 21 (Dispute Resolution) will be held at the AAA office in Manhattan, New York.
21.7. Arbitration Decision. The arbitrator will render his or her decision in writing (with specific findings of fact and conclusions of law and a detailed opinion describing how the application of such law to such fact resulted in the arbitrator’s decision) not later than thirty (30) days after the final statements and proof have been submitted and any hearing on the matter is closed. The decision of the arbitrator will be conclusive and binding upon the Parties; provided, however, that the arbitrator’s decision will be subject to judicial review, and the reviewing court may vacate, modify or correct the arbitrator’s decision as appropriate, (a) where the arbitrator’s findings of fact are not supported by substantial evidence, (b) where the arbitrator’s conclusions of law are erroneous or (c) as otherwise provided by applicable law.
21.8. Costs. In connection with any arbitration under this Section 21 (Dispute Resolution), costs of the arbitrator, AAA, court reporter, hearing rooms and other common costs will be divided equally among the parties. Each Party will bear the cost and expense of preparing and presenting its own case (including, but not limited to, its own attorney fees and costs of witnesses); provided, that, the arbitrator may require, as part of his or her decision, reimbursement of all or a portion of the prevailing Party’s costs and expenses by the other Party.
22.1. Relationship of the Agreement and Statements of Work. The Agreement and any Statements of Work are intended to be correlative and complementary. Any requirement contained in the Agreement or the applicable Statement of Work and not the other will be performed or complied with as if contained in both. However, the requirements of each Statement of Work are intended to be separate. Consequently, unless otherwise specifically provided for, the requirements of one Statement of Work will not apply to the Services and/or Deliverables provided or to be provided under another Statement of Work. Further, in the event of a conflict between any provision of the Agreement and any provision of the applicable Statement of Work, the Agreement will control unless the Parties agree expressly in the Statement of Work to override specific listed term(s) of the Agreement. In such event, the specific term(s) will be overridden for that Statement of Work only and will not constitute an amendment to the Agreement.
22.2. Notices. Any notice, claim, demand or other communication under this Agreement or any Statement of Work will be made in writing and addressed to the parties identified on the first page of the Agreement and will be deemed to have been duly given: (a) on the earlier of the first business day following the date sent or when received, if personally delivered by messenger, courier or recognized overnight delivery service to the address and parties as provided in this Agreement; (b) upon email confirmation, if delivered by email transmission to the email and designated email recipient as provided for in this Agreement; or (c) upon the expiration of five (5) business days after the day when mailed by registered or certified mail, postage prepaid, return receipt requested. Any Party from time to time may change its address, facsimile number or other information for the purpose of notices to that Party by giving notice specifying such change to the other Party hereto.
22.3. Independent Contractors. Each Party is an independent contractor and not a partner or agent of the other. This Agreement will not be interpreted or construed as creating or evidencing any partnership or agency between the parties or as imposing any partnership or agency obligation or liability upon either Party. Further, neither Party is authorized to, and will not, enter into or incur any agreement, contract, commitment, obligation or liability in the name of or otherwise on behalf of the other Party.
22.4. No Third-Party Beneficiaries. This Agreement is for the benefit of, and will be enforceable by, the parties only. This Agreement is not intended to confer any right or benefit on any third party. No action may be commenced or prosecuted against a Party by any third party claiming as a third-party beneficiary of this Agreement or any of the transactions contemplated by this Agreement.
22.5. Nonwaiver. The failure of Client to insist upon or enforce strict performance by the other of any provision of the Agreement, or to exercise any right or remedy under the Agreement, will not be interpreted or construed as a waiver or relinquishment to any extent of Client’s right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect.
22.6. Assignment. Client may assign any and all of its rights and obligations under this Agreement and any Statement of Work to a successor in interest, including assignment pursuant to a Change in Control of Client. Consultant may not directly or indirectly assign, transfer, or delegate any or all of its rights or obligations under this Agreement or any Statement of Work, voluntarily or involuntarily, including by Change of Control, merger (whether or not such Client is the surviving entity), operation of law, or any other manner, without Client’ prior written consent. Any assignment or purported assignment in contravention of this Section 22.6 (Assignment) shall be null and void ab initio and of no force or effect whatsoever.
22.7. Court Venue and Jurisdiction. All actions or proceedings arising out of, or related to, the Agreement will be brought only in an appropriate federal or state court in New York County, New York, and the parties hereby consent to the jurisdiction of such courts over themselves and the subject matter of such actions or proceedings.
22.8. Applicable Law. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, USA, AS IF PERFORMED WHOLLY WITHIN THE STATE AND WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
22.9. Entire Agreement. This Agreement and any Statements of Work constitute the entire agreement and supersede any and all prior agreements between the parties with respect to the Services, Deliverables, Consultant Proprietary Items, Client-Furnished Items and any other items provided or to be provided under this Agreement.
22.10. Interpretation. In this Agreement, unless the context otherwise requires:
22.10.1. words expressed in the singular will include the plural and vice versa, and words expressed in the masculine will include the feminine and neutral genders and vice versa;
22.10.2. references to “month” or “months” are to calendar months;
22.10.3. references to “day” or “days” are to calendar days;
22.10.4. references to this Agreement or any other agreement or document will be construed as references to this Agreement or such other agreement or document, as the case may be, as the same may have been, or may from time to time be, updated, amended, varied, novated or supplemented;
22.10.5. any phrase introduced by the words “including”, “includes”, “in particular”, “for example” or similar will be construed as illustrative and without limitation to the generality of the related general words;
22.10.6. a reference to “software” means computer programs and preparatory design materials for a computer program as literary works (together with all associated documentation) within the meaning of the CDPA 1988 as amended by the Copyright (Computer Programs) Regulations 19.