1. Services Agreement
1.1. During the term of this Agreement, Insidea agrees to perform the services described in any applicable written Statement of Work (SOW), signed by the Parties (the “Services) for the Client in accordance with the general terms and conditions and the SOW. No SOW shall become effective until it has been executed and signed by an authorized representative of each Party.
1.2. Services indicated in the SOW may be amended and supplemented from time to time pursuant to Project Change Request Procedures. No change or modification to the SOW shall become effective without the written approval of each Party’s authorized representative. Upon approval, the Parties shall attach a signed addendum to update the SOW of the agreed change(s).
1.3. When applicable, Client and Insidea shall mutually discuss and agree to the terms and conditions of such additional service(s) and corresponding fees and expenses therein and shall document and execute additional SOWs to govern the provision of such additional services. Insidea shall not begin performing any additional service(s) until a SOW has been duly executed and signed by the Parties.
1.4. In performing its obligations under this Agreement, Insidea shall be entitled to rely upon any routine instructions, authorizations, approvals, or other information provided to Insidea by Client, which may be provided by email. In the event that there is an error, incorrectness, or inaccuracy in such instructions, authorizations, approvals, or other information, Insidea shall incur no liability or responsibility of any kind in relying on or complying with any instructions, authorizations, approvals, or other information.
1.5. Client shall cooperate in good faith with Insidea so that Insidea may effectively provide the Services:
- a) Client shall cooperate with Insidea in connection with Insidea’s assumption and delivery of Services, by making available timely management decisions, information, approvals, and acceptances, as Insidea reasonably requests so that Insidea may accomplish its obligations and responsibilities under the Agreement.
- b) Client shall provide Insidea with access to Client software or other Client materials and data as Insidea may reasonably request in connection with the performance of the Services under this Agreement.
- c) Client acknowledges that Insidea’s timely delivery of the Services indicated in any applicable SOW is contingent on Client’s promptly providing (i) necessary assistance and cooperation of Client’s officers, agents, and employees, (ii) job description and schedule, and (iii) complete and accurate information, materials and data.
- d) All materials, software, and data provided by Client in connection with Insidea’s performance of the Service shall remain the sole and exclusive property of Client
2.1. This Agreement shall commence on the Effective Date and shall continue for a period of one (1) year from the Service Start Date (the “Initial Term”) as identified in the attached SOW unless otherwise extended or terminated earlier in accordance with the provisions of this Agreement.
2.2. At the end of the Initial Term, this Agreement shall renew for successive one (1) year periods (each, a “Renewal Term”), unless the Agreement is terminated in accordance with Section 13 (Termination) below. The Initial Term and any Renewal Term are collectively referred to as the “Term.”
3. Payment Terms
3.1. In consideration for the performance of Service, Client shall pay Insidea the fees set forth in the applicable SOW and/or PCR in accordance with the terms described in this Agreement (the “Fees”).
3.2. Client shall pay a one-time Set-Up fee which covers the necessary cost of recruiting, sourcing, and hiring resources, providing workspace, and procurement of tools and software as indicated in the SOW.
3.3. Any Fees due to Insidea under this Agreement that are not paid on the due date shall thereafter bear interest until paid. The unpaid amount shall be subject to an interest of 3.5% per month on any outstanding balance, or the maximum permitted by law, whichever is higher, in addition to the cost and expenses of collection.
3.4. In the event that Client fails to pay the Fees thirty (30) calendar days after the due date of the invoice, Insidea is entitled to suspend any and all Services to Client, without incurring any liability, with or without providing notice, until all delinquent fees and accrued interest have been paid in full. In addition to the above rights, Insidea is also entitled to terminate this Agreement since the failure to pay constitutes a material breach of this Agreement.
3.5. In case of disputes regarding the Fees stated, Client shall within ten (10) calendar days provide a written notice to Insidea which contains a detailed explanation of the dispute. Otherwise, the invoice sent by Insidea to Client shall be deemed accepted. Except as provided in this Agreement, the Client shall not withhold timely payment of any undisputed amount pending resolution of the disputed amount. The Parties shall discuss and agree on the Issue Escalation and Dispute Resolution process within three (3) months from the Effective Date.
3.6. Client shall pay the Fees upfront upon signature of the Agreement in accordance with the terms indicated in the SOW. The next billing event shall occur within thirty (30) days from the Service Start Date. Each subsequent payment shall be made accordingly within thirty (30) days from receipt of invoice. Payment shall be made by credit card or bank charge. Client shall provide Insidea with the details of either. Client understands and agrees that Insidea shall auto-bill the chosen Client account(s).
3.7. The rate of the Fees shall remain unchanged during the first twelve (12) months.
4. Insidea Subscription Fees
4.1. Services for each Insidea agent shall be scheduled and billed in a nine (9) consecutive hour block, which includes one hour (1.5 hours) of break time on each of the five (5) days, per (7) consecutive day, the period beginning on each Monday (the “Work Week”). Each day comprises of nine (9) consecutive billable hours (the “Work Day”). Days that are not Work Days consist of two (2) days, not within the Work Week and are considered Rest Days.
4.2. Client may request in writing that Insidea agents render Overtime Hours (defined as all hours beyond nine (9) hours in any given work day or any hours worked during the Rest Day). The rate for Overtime Hours shall include an additional premium charge equal to one-half (1/2) of the applicable rates indicated in the SOW.
4.3. Insidea provides its agents ten (10) days off per year as Public Holidays. The Client has the option to choose which Public Holidays calendar (US Public Holidays or local Public Holidays) their agents shall be following for each calendar year. In the event that Client shall need support on a Public Holiday, Client shall provide Insidea at least two (2) weeks notice in advance. Insidea shall within five (5) calendar days from receipt of request provide the Client with their response. During the period of service, Client shall pay an additional charge equal to two (2) times the stated SOW rates of such agent.
4.4. Client may not reduce the number of Insidea agents until the next Agreement renewal date. However, the Client may increase the number of Insidea agents by submitting a written request to Insidea, at least thirty (30) calendar days before the additional agents are to begin performing Services. Insidea shall use reasonable efforts to fulfill the Client’s request within the notice period or even before the notice period. The Parties agree that any increase or reduction shall be made in accordance with Section 1.2 (Project Change Request).
5. Client and Insidea Relationship
5.1. There shall be no employer-employee relationship between the Client and Insidea agent. Except as indicated in the Agreement, Insidea shall retain the sole and exclusive control over its employees and independent contractors for the purposes of performing the Services throughout the indicated Term. Actions affecting the employees may include but shall not be limited to the following: a) recruitment, b) hiring, c) transferring, d) performance management or d) termination of an employee or any other employee-related action.
5.2. Insidea shall have the discretion in the selection, engagement and discharge of its agent(s) assigned to perform the Services as indicated in the applicable SOW. The determination of the salaries or compensation of the agent(s), and the manner, frequency, and place of their payment, shall be within the exclusive control of Insidea. However, Insidea shall promptly act on Client’s complaints regarding Insidea agent(s) assigned to perform the Services and only upon finding reasonable ground (not meeting required service level agreement, habitual absenteeism, and gross negligence) shall assign another agent to perform the Services to replace the agent subject of Client’s complaints.
6. Compliance With Privacy Laws
Whenever applicable, in performing its obligations under this Agreement or in any SOW, the Parties shall, at all times, comply with applicable data privacy laws and all other laws and government issuances which are now or shall be promulgated relating to data privacy and the protection of personal information. If any data processed under the Agreement constitutes personal data, Client undertakes to ensure, in its capacity as the data controller, that the data subjects are informed about the processing of such personal data by Insidea, and to the extent needed, obtain their consent thereto.
7. Intellectual Property
7.1. Intellectual Property (IP) shall mean all work of authorship, inventions, designs, drawings, business methods, performances, computer programs, confidential information, business names, goodwill, and the style and presentation of services and applications for the protection of any of the above works anywhere in the world.
7.2. Background IP shall mean any intellectual property owned or controlled by each Parties at the date of this Agreement or created outside of this Agreement. Each Party is and shall remain the sole and exclusive owner of all rights, titles, and interests in and to its Background IP. No Party shall acquire any rights to the other party’s Background IP. Any modifications to, developments, improvements, enhancements, inventions, or the like, to each Party’s Background IP shall vest solely in the Party owning such Background IP.
7.3. Insidea shall retain all rights, title, and interest in its materials, data, ideas, concepts, know-how, techniques, processes, strategy, technology, and other intellectual property (“Insidea Property”), including any Insidea Property utilized, created, developed independently or conceived by Insidea in connection with the performance of the Services that are not specific to Client and that are of general use, even if incorporated into the Client deliverables. Subject to full payment of Client’s obligation, Insidea shall grant unto the Client a limited, royalty-free, non-sublicensable, and non-exclusive license to use any Insidea materials as part of the deliverables in connection with such Client deliverable(s). In the same vein, Client shall retain all rights, title, and interest in its materials, data, information, software, technology, and other intellectual property (“Client Property). Subject to the performance of Services under this Agreement and any SOW and/or PCR, Client shall grant unto Insidea a limited, royalty-free, non-sublicensable, and non-exclusive license to use Client materials, software, and applications.
8.1. Each Party shall indemnify, defend and hold harmless the other Party, from and against all third party liabilities, losses, damages, claims, and expenses including reasonable attorney’s fees and expenses, arising from: a) death of or injury to any agent, employee, personnel or other person to the extent caused by the gross negligence or willful acts or omissions of the indemnitor, or its respective agent, personnel, employee or contractor; b) any employment related claim by an agent, personnel, employee or contractor of Insidea against Client arising from or based on their employer-employee relationship, including but not limited to claims for benefits, unpaid wages, worker’s compensation, or wrongful termination; c) the gross negligence or willful misconduct of the Indemnifying Party; or d) any claims, damages, or expenses resulting from the Indemnifying Party’s disregard of or failure to abide by the applicable laws or regulations controlling or specific to the operation of its business excluding those incurred by Client as a result of compliance by Insidea with Client’s explicit and express instructions as indicated in Section 1.4 (Reliance on Instructions) of this Agreement.
8.2. If any deliverables provided by Insidea to Client become the subject of a claim under this Section, or in Insidea’s opinion is likely to become the subject of such a claim of any third party’s intellectual property rights, then Insidea may, at its sole discretion, either a) modify the deliverable to make it non-infringing or cure any claimed misuse of another’s trade secret while continuing to provide equivalent utility to Client, or b) procure for the Client the right to continue using the Client deliverable or c) replace the Client deliverable with substantially equivalent deliverable that is non-infringing or d) give Client a refund of the fees paid by Client for the deliverable. Insidea shall not incur any liability with respect to any infringement claim if the use of the deliverable is based on Client’s explicit instructions or specifications in its performance of Services in addition to the provisions indicated in Section 8.3. The Parties acknowledge and agree that the entire liabilities and remedies indicated in this Section shall be the sole and exclusive remedy for infringement of claims and actions.
8.3. Insidea shall not incur any liability with respect to any Infringement Claim above: a) to the extent that any claim of infringement is based upon the use of the deliverable not in accordance with the Agreement or for purposes not intended by Insidea; b) use of the deliverable in connection or in combination with equipment, devices or Software not supplied by Insidea; c) for maintenance, modifications, updates, enhancements and improvements to the deliverable made by any Party other than Insidea; or d) use of the deliverable is based on Client’s explicit instructions or specifications in its performance of Services.
9. Force Majeure
9.1. Except with respect to payment obligations under this Agreement, no Party shall be liable for, nor shall such party be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement as a result of a cause beyond its control, including any act of God or a public enemy or terrorist, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications, power or other utility, labor problem, unavailability of supplies, or any other cause, whether similar or dissimilar to any of the foregoing (each, a “Force Majeure Event”).
9.2. Within 72 hours of the occurrence of a Force Majeure Event, the affected Party shall notify the other Party of the occurrence by sending an e-mail message to the other Party. Insidea shall take reasonable steps to minimize service interruptions and mitigate their effects but shall have no liability with respect thereto.
9.3. In the event that such Force Majeure exceeds six (6) months and Insidea is not able to provide Services to the Client, either Party shall have the option to terminate the Agreement and all applicable SOWs upon providing at least thirty (30) calendar days written notice.
10. Confidential Information
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
Proprietary Information of Insidea includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Client includes non-public data provided by Client to Insidea to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in the performance of the Services or as otherwise permitted herein) or divulge to any third person.
Client shall own all rights, titles, and interests in and to the data provided by Client, as well as any data that is based on or derived from the Client Data and provided to Client as part of the Services.
Insidea shall own and retain all rights, title, and interest in and to the Services and Software, all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with Implementation Services or support, (c) all intellectual property rights related to any of the foregoing or (d) was independently developed without the use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
11. Limitation of Liability
11.1. Insidea shall not be liable for any indirect, incidental, special, consequential or punitive damages, or any damages for lost data, business interruption, lost profits, lost revenue or lost business, arising out of or in connection with this agreement, even if Insidea has been advised of the possibility of such damages, including without limitation any such damages arising out of the services. Insidea will not be liable for the cost of procurement of substitute goods or services.
11.2. Insidea shall not be liable for cumulative, aggregate damages greater than the sum of the amounts having then actually been paid by client to Insidea under this agreement during the twelve (12) month period preceding the date the claim arose, minus, in all circumstances, any amounts previously paid (as of the date of satisfaction of such liability) by Insidea to client in satisfaction of any liability for damages under this agreement.
12. Warranties and Disclaimers
12.1. Each Party represents and warrants that it is authorized to enter into this Agreement and any applicable SOW through its duly authorized representatives without violating the conditions of any other agreement.
12.2. Insidea shall promptly provide Client notice in writing by email, as soon as it becomes aware of any unscheduled emergencies, sick days or other unforeseen events (as provided in Section 9 Force Majeure) that are beyond Insidea’s reasonable control. Insidea does not make any warranty that the Services in those instances shall be available or uninterrupted or error-free. Client acknowledges and agrees that in those instances, any previously agreed service level arrangement shall not apply.
12.3. Except as expressly set forth in this Section 12.3, the Services and Set Up Services are provided “AS IS” and Insidea disclaims all warranties, express or implied, including but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
13.1. Either Party may terminate this Agreement for cause (i) upon sixty (60) calendar days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In no event shall termination relieve Client of the obligation to pay any fees due to Insidea for Service performed to the date of termination.
13.2. Effects of Termination
- a) Upon termination, each Party shall within sixty (60) calendar days return to the other Party any property of the other Party in its possession or under its control including any and all Confidential Information in accordance with this Agreement. Insidea shall make available to Client for electronic retrieval any Client data within the same period but thereafter, Insidea may, but is not obligated to, delete stored Client data.
- b) Payment of Fees. All accrued Fees for Services performed prior to the termination date shall become due and payable to Insidea within sixty (60) calendar days of the termination date in addition to the provisions indicated in Section 13.1
- c) All sections of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability
14. Miscellaneous Provisions
14.1. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
14.2. This Agreement and all rights and obligations hereunder may not be assigned without the written consent of the other Party. Such written consent shall not be unreasonably withheld or denied. In accordance with this Section 14.2, the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
14.3. Nothing in this Agreement shall be construed as creating an agency, partnership, joint venture, or any other form of association between the Parties and the Parties shall at all times be and remain independent contractors. Neither Party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other Party or to bind the other Party in any respect whatsoever. Neither Party shall have any obligation or duty to the other Party except as expressly and specifically set forth in this Agreement, and no such obligation or duty shall be implied by or inferred from this Agreement or the conduct of the Parties hereunder.
14.4. Client acknowledges and agrees that Insidea incurs a substantial expense, in time, effort and money, in hiring, training,, and developing the resources it uses to provide Services under this Agreement. Therefore, Client agrees that it shall not recruit, solicit, employ or hire or attempt to recruit, solicit, employ or hire, directly or indirectly employees, agents, or contractors of Insidea within the Term of the Agreement and within twelve (12) months from separation from Insidea without the express approval of Insidea. If the Client is interested in hiring one or more employees of Insidea, such interest will be discussed first with Insidea prior to discussing such an offer with an employee. In the event of a a breach of this Section, (e.g., assigned personnel is employed by the Client as part of its workforce without prior discussion and express approval of Insidea), in addition to other remedies Insidea may have at law or in equity, Insidea shall be entitled to a payment from Client of an amount equal to six (6) months subscription fees.
14.5. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications,, and other understandings relating to the subject matter of this Agreement. Any amendment to this Agreement, applicable SOW, or PCR shall be agreed in writing and shall be duly signed by the Parties hereto and shall make reference to this Agreement.
14.6. No extension of time for the performance of any obligations or acts shall be deemed an extension of the time for the performance of any other obligations or acts, except as otherwise expressly provided for in this Agreement.
14.7. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
14.8. The Parties acknowledge and agree that each has participated jointly in the negotiation of this Agreement, and had the opportunity to seek the advice of legal counsel to review, comment upon, and draft this Agreement. As a result, the Parties agree that the presumption of any laws or rules relating to the interpretation of contracts against the drafter thereof should not apply, and hereby waive any such presumption.
14.9. This Agreement shall be governed by the laws of the State of California without regard to its conflict of law provisions.
14.10. The headings used in this Agreement are inserted for convenience only, do not constitute a part of this Agreement, and shall not control or affect in any way the meaning or interpretation of this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.
14.11. During the performance of this Agreement, Parties agree to comply with all federal, state, and local laws respecting discrimination in employment and non-segregation of facilities including, but not limited to, requirements set out at 41 CFR §§60-1.4, 60-300.5, 60-741.5, and 61-300.10 and to comply with 29 CFR Part 471, Appendix A to Subpart A. The foregoing requirements and regulations are hereby incorporated by reference.
14.12. In the event of a conflict between GTC and SOW, provisions indicated in SOW shall prevail.