This Master Services Agreement entered into as of today ("Effective Date") and all Exhibits and attachments hereto, (collectively the "Agreement") by and between Respada Incorporated, a company registered in the British Virgin Islands ("Respada") and you ("Client"), regarding the provision of Services by Respada to Client. Respada and Client may individually or collectively be called "Party" or "Parties".
RESPADA INCORPORATED (‘Respada’)
CONTACT
E-mail: [email protected]
Address: ROOM 1104 Crawford House, 70 Queen's Rd. Central, Central HK, Hong Kong SAR.
TERM, TERMINATION & RENEWAL
The initial term of the Agreement (“Initial Term”) shall commence on the Effective Date and continue for a period of 365 days from the effective date, or such earlier date upon which the Agreement may be terminated pursuant to Section 9 (Termination).
This agreement will automatically renew for 365 days unless notice is given by either party at least 60 days to the expiration of the Initial Term.
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS
1.1 “Agreement” means this Agreement, including all exhibits and attachments, including statement of work and any amendments thereof, that have been signed by both the parties.
1.2 “Confidential Information” means:
(i) For Client, all information relating to Client’s (including its’ parent, subsidiary and affiliate’s) products, services, trade secrets, technical information, marketing plans, recruitment processes, customers, personnel information, financial data, proprietary information, business forecasts and strategies, transactions, computer programs, manuals, source code, object code, technical drawings and algorithms, supplier or potential supplier names, customer or potential customer names, business contacts, employee and contractor information, know-how, formulae, methods of doing business, proprietary processes, ideas, inventions, (whether patentable or not), schematics and other technical, business, and product development plans, forecasts, strategies and information), that is disclosed to Respada’s employees, contractors, consultants, agents, representatives and affiliates by Client in any manner. Additionally, for Client, Client’s Confidential Information also includes, but is not limited to, Client Materials, Client Work Product and Client’s and Client’s customers’, employees and other individuals’ Personal Information provided to or accessible by Respada pursuant to the Agreement. Client retains all rights, title and interest regarding such Confidential Information; and
(ii) For Respada, All information concerning Respada, its personnel, its service delivery model, prior works, financial data, proprietary information, business forecasts and strategies, transactions, computer programs, manuals, source code, object code, technical drawings and algorithms, supplier or potential supplier names, customer or potential customer names, business contacts, employee and contractor information, know-how, formulae, methods of doing business, proprietary processes, ideas, inventions, (whether patentable or not), schematics and other technical, business, and product development plans, forecasts, strategies and information), that may be disclosed to Client or its personnel, by Respada or its personnel, whether in writing or otherwise, shall constitute confidential information of Respada. Respada retains all rights, title and interest regarding such Confidential Information.
Under this Agreement, the Party receiving or having access to any Confidential Information is referred to as the “Receiving Party” and the Party disclosing the Confidential Information is referred to as the “Disclosing Party.”
1.3 “Change Order” means a mutually agreed written amendment to a Statement of Work or the Agreement, which is executed and dated by the Parties and effective from such date of execution.
1.4 “Client Work Product” means, collectively, all Deliverables (as defined below) and all preliminary, interim, or completed materials and work product relating to the research, implementation, use, enhancement, and maintenance of Deliverables, exclusive of any Reserved Technologies/Method embodied therein or practiced thereby.
1.5 “Deliverables” mean any preliminary, interim or other work product, algorithms, derivative works, modifications, specifications, materials, manuals, methods, information, analysis, inventions, methods, procedures, technology, ideas, know-how, to be provided or developed by Respada under the terms and conditions of this Agreement (in the case of Reserved Technology/Method embedded in or provided with Client Work Product, such Reserved Technologies/Method will be provided in accordance with Section 5.3.1 and 5.3.2).
1.6 “Intellectual Property Rights” means all (i) copyrights and other rights associated with works of authorship, including without limitation all exclusive exploitation rights, moral rights and mask-works, (ii) trademarks, trade names, logos and service marks, (iii) trade secrets and know-how, (iv) patents, designs and algorithms, (v) all other intellectual property and proprietary rights of every kind and nature now or hereafter recognized in any country or jurisdiction in the world and however designated, whether arising by operation of law, contract, license or otherwise, (vi) with respect to any particular information, all rights in such information under applicable law, including, without limitation, all of the foregoing Intellectual Property Rights and rights under any other law that gives a person, independent of contract, a right to control or preclude another person’s use of or access to the information on the basis of the rights holder’s interest in the information; and (vii) all registrations, applications, renewals, extensions, continuations, divisions or reissues of any of the foregoing, now or hereafter recognized in any country or jurisdiction in the world.
1.7 “Pre-Existing Materials” means any and all materials, information, inventions, methods, procedures, technology and know-how owned or developed by Respada prior to the Effective Date that do not embody or incorporate in any manner and are not derived from Client Work Product, Client’s Confidential Information, and Client Materials under this Agreement, which shall remain the exclusive property of Respada.
1.8 “Reserved Technology” means all (i) Pre-Existing Materials developed by Respada, that do not embody or incorporate in any manner and are not derived from Client Work Product, Client’s Confidential Information, and Client Materials, and (ii) developed by Respada outside the scope and independently of this Agreement without reference to and not derived from Client Work Product, Client’s Confidential Information and Client Materials.
1.9 “Services” means the services, functions and responsibilities to be provided by or on behalf of Respada as (i) described in the Agreement, including the services set forth in the SOWs, and (ii) that are incidental and not specifically described in the Agreement, but which are required for the proper performance and delivery of the services, functions, and responsibilities identified in SOWs.
1.10 “Statements of Work” means written work orders which contain terms including but not limited to requirements and specifications. The appropriate ‘Statement of Work’ in this instance will mean the Statement of Work appropriate to the package chosen by Client. [hereinafter referred to as “Statement of Work” or “SOW”].
PERFORMANCE OF SERVICES
2.1 Performance of Services. Respada will perform Services in accordance with the terms of this Agreement and each Statement of Work. In the performance of the Services, Respada will provide Deliverables that conform to the Acceptance Criteria by the applicable due date for such Deliverable. Unless otherwise expressly set forth in a Statement of Work, Respada will bear the cost of provision of all equipment, facilities, furniture, telecommunications, software, tools and other resources as necessary to the personnel engaged to provide the Services to Client.
2.2 Compliance. The Services shall be performed and supplied by Respada in compliance with the laws and regulations applicable in the respective Service Locations as well as the place of delivery of such services.
2.3 Service Locations. The Services shall be performed and supplied by Respada from its available Service Locations from time to time.
2.4 Changes to Services. Either Party may propose to change the terms of a Statement of Work or the Agreement. However, such change shall come into force only when accepted, in writing (by physical or electronic means), by both the parties to this Agreement.
2.5 Acceptance. Each Deliverable or Services under a SOW or Change Order shall conform to Acceptance Criteria, if any, defined in such SOW or Change Order.
3. COMPENSATION; FINANCIAL TERMS
3.1 Fees. Subject to the terms and conditions of this Agreement, Client will pay Respada the fees specified in the Statement of Work. Respada’s pricing and reimbursement policies are set forth in Exhibit A [Statement of Work ‘SOW’] or other Exhibit or attachment, duly executed by both the parties and the terms of such Exhibits or Attachments may only be modified through the mutual written agreement of both Parties. Client shall have no obligation to pay Respada any fees, charges or other amounts not expressly set forth in the Agreement or a Statement of Work (as amended from time to time to account for any additional Services mutually agreed to between the Parties),
3.2 Expenses. Unless expressly provided otherwise in this Agreement or any of its Attachments or Exhibits, Respada will be solely responsible for all expenses incurred by any of its employees or agents in connection with performing the Services or otherwise performing its obligations under this Agreement. However, in the event of provision of services, on site, the Client shall bear all additional expenses, including but not limited to travel, boarding, lodging, Visa, additional remuneration, taxes and such other additional expenses that Respada may incur, on account of deputing its personnel, on site.
3.3 Invoicing.
(a) Respada will submit reasonably detailed invoices to Client immediately after signing this Agreement. The Client shall proceed to pay such Invoice within 5 days from the date of receiving such invoice. The amounts set forth in the invoice(s) and payments made by Client shall be in U.S. Dollars.
(b) Respada shall have no obligation to commence any service prior to receipt of payment of its invoices.
3.4 Payment. Payment may be made by bank wire transfer to Respada’s bank or such other means, instructions for which will be set out in the Invoice.
3.5 Taxes. Respada will be responsible for payment of all such taxes and duties relating to its income and the income of its employees and shall not be responsible for any taxes or duties arising from the performance of the services agreed to be provided under this Agreement. All taxes that do not arise from the income of Respada or its employees, shall be the responsibility of the Client.
4. CONFIDENTIALITY
4.1 Use and Disclosure. Under this Agreement, each Receiving Party will (a) hold all Confidential Information of the Disclosing Party in strict trust and confidence, (b) refrain from using or permitting others to use such Confidential Information in any manner or for any purpose not expressly permitted or required by this Agreement, (c) refrain from disclosing or permitting others to disclose any such Confidential Information to any third party without obtaining the Disclosing Party’s express prior written consent on a case-by-case basis, and (d) limit access to the Confidential Information to employees or agents of the Receiving Party who have a reasonable need to have such access in connection with the performance of the Services and are bound by confidentiality provisions no less stringent that those contained herein. The foregoing obligations will survive any termination of this Agreement. To the extent a Party has disclosed information that constitutes a trade secret under law, the Receiving Party agrees to protect such trade secret for so long as the information qualifies as a trade secret under applicable law.
4.2 Exceptions. The obligations set forth in Section 4.1 will not apply with respect to any particular information that: (a) the Receiving Party lawfully knew prior to the Disclosing Party’s first disclosure to the Receiving Party, (b) a third party rightfully disclosed to the Receiving Party free of any confidentiality duties or obligations, (c) is, or through no fault of the Receiving Party has become, generally available to the public, or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. Additionally, the Receiving Party will be permitted to disclose Confidential Information to the extent that such disclosure is expressly approved in writing by the Disclosing Party, or is required by law or court order, provided that the Receiving Party immediately notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure, including filing motions and otherwise making appearances before a court.
4.3 Return. Upon the Disclosing Party’s request and upon any termination or expiration of this Agreement, the Receiving Party will promptly (a) return to the Disclosing Party or, if so directed by the Disclosing Party, destroy all tangible embodiments of the Confidential Information (in every form and medium), (b) permanently erase all electronic files containing or summarizing any Confidential Information, and (c) certify to the Disclosing Party in writing that the Receiving Party has fully complied with the foregoing obligations.
4.4 Cooperation. Each Receiving Party will notify and cooperate with the Disclosing Party in enforcing the Disclosing Party’s rights if the Receiving Party becomes aware of a threatened or actual violation of the Disclosing Party’s confidentiality requirements by a third party. Upon reasonable request by Client, Respada will provide copies of the confidentiality agreements entered into with its employees, agents, or independent contractors which shall be no less restrictive than the confidentiality obligations between Parties under this Agreement.
4.5 Use of General Knowledge. Nothing in this Agreement shall be construed to limit either Party’s right to independently develop or acquire products without use of either Party’s Confidential Information or Retained Technology either for itself or for other Clients. Further, either Party shall be free to use for any purpose the general knowledge resulting from access to or work with such Confidential Information or Retained Technology, provided that each Party shall maintain the confidentiality of such Confidential Information as provided herein. The term “general knowledge” means information in non-tangible form, which may be retained in the unaided memory of any person who has had access to the Confidential Information or Retained Technology, including ideas, concepts, know-how or techniques contained therein. This Section 4.5 shall not be deemed to grant Respada a license under the Client’s copyrights or patents.
4.6 Data Protection. Respada acknowledges that Client is and/or will be subject to United States federal and state laws and other laws throughout the world including and applicable regulations thereto (collectively, the “Privacy Laws”) governing privacy and confidentiality of personal information as defined in the Privacy Laws or information that relates to a specific, identifiable, individual person (collectively, “Personal Information”) of Client’s customers and employees and the individuals about whom Client has or collects personal and other information. Client and Respada agree to cooperate with each other with respect to the other’s obligations under the Privacy Laws. Each of Respada and Client will comply with all applicable Privacy Laws relating to the collection, use and disclosure of Client’s and Client’s customers’, employees and other individuals’ Personal Information provided to or accessible by Respada pursuant to the Agreement. The primary obligation to protect the personal information of Client’s customers, rests with the Client. Respada’s obligation shall be limited to non-disclosure and maintaining confidentiality of information, if any, marked as confidential/private by the Client, that may come into the hands of Respada, during the process of performance of its obligations under this Agreement.
5. INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
5.1 Ownership. Client will solely and exclusively own all right, title and interest in and to all Client Work Product and all Intellectual Property Rights related thereto that gets delivered through the Respada platform. Client will be deemed to own, without any restrictions or limitations whatsoever, the sole and exclusive rights to prepare derivative works based on the Client Work Products and to reproduce, adapt, distribute, publicly perform and display, and otherwise exploit the Client Work Products and such derivative works, by any and all means and in any and all media now or hereafter known, throughout the world and in perpetuity.
Open Source Code or other Intellectual Property, if any, included in the Client Work Product, shall be subject to the licenses under which such Open Source Code is distributed, by their respective authors.
All rights to the Respada platform, web store and related technologies will solely be owned by Respada.
5.2 Ownership of Client Materials. Any and all technology, code, information or materials provided by Client to Respada in connection with Respada’s performance of the Services, including, without limitation, product materials, product and business information of Client, and software programs (collectively, “Client Materials”), together with all Intellectual Property Rights therein, are and shall be owned by, and shall be the sole and exclusive property of, Client. Client hereby grants to Respada a worldwide, royalty-free, non-exclusive, limited license to use the Client Materials for the sole purpose of Respada’s performance of the Services under this Agreement.
5.3 Reserved Technologies.
5.3.1 License to Reserved Technologies. Subject to the terms and conditions of this Agreement, Respada hereby grants to Client a non-exclusive, perpetual, irrevocable, worldwide, fully paid, royalty free license in and to all of Respada’s Intellectual Property Rights in or relating to the Reserved Technologies or Pre-Existing Materials used in or relating to the Services or Client Work, to the extent such license is necessary for the effective use of Client Work by Client.
5.3.2 Reservation of Certain Intellectual Property Rights. Subject to the license granted by the preceding paragraph, Each Party reserves all rights that are not expressly granted in this Agreement. Client acknowledges that the foregoing licenses to Client are non-exclusive and that Respada may use the Reserved Technologies for any purpose at Respada’s discretion.
6. REPRESENTATIONS AND WARRANTIES
6.1 General.
(a) Respada represents, warrants and covenants that it has full right, power, and authority to enter into and perform this Agreement without the consent of any third party, including the right to grant all licenses granted by Respada in this Agreement.
(b) Compliance with Laws And Regulations.
(i) General. Respada represents and warrants that it shall perform its responsibilities under this Agreement in compliance with all laws, regulations ordinances and codes applicable to this Agreement and the Services and identifying and procuring required permits, certificates, approvals and inspections. If a charge of non-compliance with any such laws, regulations, ordinances, or codes occurs, then Respada shall (A) promptly notify Client of such charge in writing and (B) immediately remediate such noncompliance at Respada’s own cost and effort.
(ii) Export Laws. Respada acknowledge that certain Software and technical data to be provided under this Agreement and certain transactions under this Agreement may be subject to import and export controls under the laws and regulations of the United States and other countries. Without limiting the generality of the foregoing, Respada will comply with all such import and export related laws and regulations. Respada further represents and warrants to Client that (A) neither Respada nor any Respada personnel or representative are included on any Entity List or Denied Persons List (as maintained by the Department of Commerce Bureau of Industry and Security); and (B) Respada will never involve any entity or person included on any such Entity List or Denied Persons List under this Agreement.
(c) Respada represents and warrants that all Client Work Product is free of any mal-ware (including viruses, trojan horses, worms, backdoors, and similar items), time bombs, and other disruptive mechanisms. Respada further represents and warrants that it will not insert into any Client Work Product, software, or system any code which would have the effect of disabling or otherwise shutting down all or any portion of Client’s businesses, environment, or any Deliverable. Respada further represents and warrants that it will use and maintain, and cause its contractors and subcontractors to use and maintain then current anti-virus software as is commercially reasonable.
(d) Respada represents and warrants that it will perform the Services under this Agreement in a timely, professional, and workmanlike manner in accordance with the standards of the industry. All Services will be rendered by professionals who possess the required qualifications to perform work outlined in the applicable Statement of Work.
(e) Respada warrants that for 3 months after the termination or expiration date of this Agreement, each Deliverable produced or provided during 1 month prior to such termination or expiration date, will not deviate from the specifications and documentation for such Deliverable and will remain free of any Non-conformities.
(f) Respada represents and warrants that Client Work Product, Reserved Technologies, and Respada’s Services and technologies will not infringe, or constitute an infringement or misappropriation, of any third party’s Intellectual Property Rights; except to the extent and only to the extent that such infringement or misappropriation is caused solely and directly by Client Material provided by Client. Respada represents and warrants that it has and will have the right, title and interest to grant all of the licenses and other rights granted and/or to be granted under this Agreement and each Statement of Work.
6.2 Disclaimer of Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 6.1 ABOVE OR A STATEMENT OF WORK, NEITHER PARTY MAKES ANY REPRESENTATIONS AND GRANTS NO WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED.
6.3 Essential Basis. The Parties acknowledge and agree that the disclaimers, exclusions and limitations of liability set forth in Sections 6 and 7 form an essential basis of this Agreement, and that, absent any of such disclaimers, exclusions or limitations of liability, the terms of this Agreement, including without limitation the economic terms, would be substantially different.
7. LIMITATION OF LIABILITY
EXCEPT FOR EITHER PARTY’S (A) INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, (B) BREACH OF ITS CONFIDENTIALITY AND DATA PROTECTION OBLIGATIONS, AND (C) BREACH OF ANY REPRESENTATION AND WARRANTY UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS, LOSS OF DATA, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING UNDER ANY CAUSE OF ACTION AND ARISING OUT OF THIS AGREEMENT OR UNDER ANY STATUTE OR LAW CONNECTED INDEPENDENTLY OF THIS AGREEMENT TO SUCH CAUSE OF ACTION. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. EXCEPT FOR EITHER PARTY’S (A) INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, (B) BREACH OF ITS CONFIDENTIALITY AND DATA PROTECTION OBLIGATIONS, AND (C) BREACH OF ANY REPRESENTATION AND WARRANTY UNDER THIS AGREEMENT, NEITHER PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STATUTE OR OTHERWISE, WILL EXCEED THE AMOUNT PAYABLE BY CLIENT TO RESPADA UNDER THIS AGREEMENT.
8. INDEMNIFICATION
8.1 By Respada. Respada will indemnify, defend, and hold harmless Client, its affiliates, and their officers, directors, affiliates, employees, agents and successors and assigns, from and against any and all liabilities, losses, damages, costs, and all other expenses (including attorneys’ and expert witnesses’ costs, and fees and litigation, settlement, judgment, interest and penalties) arising from or relating to any claim caused by (a) fraud, intentional misconduct, or negligence of Respada or any of its employees, agents, or subcontractors, (b) the alleged breach, misappropriation, or infringement of any Intellectual Property Right of a third party in connection with the Services, Deliverables, Client Work Product, or Reserved Technologies, (c) Respada’s breach of or any inaccuracy or untruthfulness with respect to any representation or warranty under this Agreement, (d) Respada’s breach of its confidentiality and data protection obligations under this Agreement, (e) claims by Respada subcontractors or representatives asserting rights under or in connection with this Agreement, (f) the death or bodily injury of any agent, employee, customer, business invitee, or business visitor or other person caused by the tortious conduct of Respada or any of its employees, agents, or subcontractors; (g) the damage, loss or destruction of any real or tangible personal property caused by the tortious conduct of Respada or any of its employees, agents, or subcontractors; (h) any claim, demand, charge, action, cause of action, or other proceeding resulting from an act or omission of Respada in its capacity as an employer of a person; and (i) (x) failure by Respada to comply with its obligations with respect to Taxes, (y) any Taxes assessed against Client that are the responsibility of Respada under this Agreement or according to applicable law, or (z) for interest or penalties that arise as a result of Respada having issued an incorrect invoice to Client with respect to Taxes or collection thereof.
8.2 By Client. Client will indemnify and hold harmless Respada and its affiliates, employees, and agents from and against any and all liabilities, losses, damages, costs, and other expenses (including attorneys’ and expert witnesses’ costs and fees) arising from or relating to any third party claim caused by (a) intentional misconduct of Client or any of its employees, or agents (excluding Respada) in connection with the Services, or (b) the alleged infringement of any intellectual property right of a third party (other than patents) by Respada’s use as contemplated under this Agreement of any materials provided by Client to Respada in connection with the Services, except to the extent that such infringement is caused by: (i) a modification or enhancement, or misuse, by Respada or Respada’s personnel or agents (except for modifications made at the written direction of Client); (ii) failure by Respada or Respada’s personnel or agents to use new or corrected versions of such materials provided by Client; (iii) the combination, operation or use by Respada or Respada’s personnel or agents with products or information not furnished or authorized by Client; or (iv) the Services, Deliverables, Client Work Product, or Reserved Technologies provided by Respada or Respada’s personnel or agents.
8.3 Procedures. In the event of any third-party claim, demand, suit, or action (a “Claim”) for which an indemnified Party (or any of its affiliates, employees, or agents) is or may be entitled to indemnification hereunder, such indemnified Party may, at its option, require the indemnifying Party to defend such Claim at such indemnifying Party’s sole expense. The indemnifying Party may not agree to settle any such Claim without the indemnified Party’s express prior written consent. Without limiting the foregoing, the indemnified Party shall be permitted, at its own expense, to participate in the defense of any claim under this Agreement by counsel of its own choice.
9. TERMINATION
9.1 Termination at Will. Client may terminate this Agreement or any Statement of Work without cause for its convenience at any time upon provision of 30 days written Notice to Respada.
9.2 Termination for Breach.
9.2.1 In the event, Respada:
(a) commits a material breach of the Agreement that is not cured within thirty (30) days after receipt of written notice of the breach from Client;
the Client, by giving notice to Respada, may terminate, in whole or in part, this Agreement for cause and/or any Statement(s) of Work as of a date specified in the notice of termination.
9.2.2 In the event that Client fails to pay invoices raised by Respada within the period specified in such Invoice and if Client fails to make such payment within 10 days of receipt of written Notice from Respada, Respada shall have the right to exercise any of the following remedies at its sole election: (i) terminate the Agreement for breach of payment by Client by providing 15 days’ written Notice to Client; or (ii) Terminate a Statement of Work for which payment has not been received.
9.2.3 Termination Assistance.
Commencing 15 days prior to the termination date or on such earlier date as Client may request, and continuing for 30 days after the termination date, Respada shall provide to Client, or at Client’s request to Client’s designee, all reasonable assistance requested by Client to allow the Client to make effective use of the services and Client Work delivered by Respada till the time of termination.
(a) To the extent Respada is to perform Services under this Section, the provisions of this Agreement shall be applicable as such provisions would have been applicable to such Services prior to the termination date. All Termination Assistance shall be chargeable to Client at an hourly rate of US $ 250 per hour.
9.3 Effects of Termination.
9.3.1 Survival. Sections of this Agreement that are intended to survive will survive any termination or expiration of this Agreement. Expiration or termination of this Agreement will not relieve the Parties of any obligation accruing prior to such expiration or termination.
9.3.2 Return of Client Property. Upon termination of this Agreement or earlier as requested by Client, Respada will deliver to Client any and all documents, samples, and other materials in Respada’s possession or control that contain, summarize, or disclose any Client Work Product (in whatever stage), Client’s Confidential Information, Client Materials (in whatever stage of development or completion) or any other materials or intellectual property provided by or on behalf of Client.
9.3.3 Compensation. Upon termination or expiration of this Agreement, Client will pay Respada all undisputed fees for all Services performed through the effective date of termination and will reimburse Respada for undisputed expenses validly incurred by Respada before the effective date of such termination.
9.3.4 Refund. In the event of Termination by Client, the Client shall not be entitled to any refund of the amounts already paid to Respada.
10. MISCELLANEOUS
10.1.1 Non-solicitation. a) Each Party agrees not to employ, or solicit or seek to employ, any employee/consultant of the other Party for a period of 2 years after such employee’s termination of employment, without the prior written consent of the other Party. In the event of breach of this section 10.1.1, with respect to a particular employee/consultant, the aggrieved part shall be entitled to 2 years of gross compensation/remuneration payable to such employee, by the Party in breach or to seek a temporary restraining order or injunctive relief from a court of competent jurisdiction and if such temporary restraining order or injunctive relief is granted by such court, then all costs pertaining to seeking such relief shall be borne by the Party in breach.
b) Each Party agrees not to solicit or seek to engage clients that are introduced by the other Party for any other services outside of the Statement of Work (SoW) for a period of 5 years from the effective date of termination of this Agreement.
10.2 Independent Contractor Relationship. Respada’s relation to Client under this Agreement is that of an independent contractor. Nothing in this Agreement is intended or shall be construed to create a partnership, joint venture, or employer-employee relationship between Client and any of Respada’s employees or agents. Respada is not an agent of Client and is not authorized, and shall not represent to any third party that it is authorized to make any commitment or otherwise act on behalf of Client as its agent.
10.3 Severability, Exemption/Exclusions
10.3.1 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
10.3.2 Exemption/Exclusion. The Parties hereto, may, if they so wish, by mutual agreement, in writing, exempt one or both of the parties from any of the provisions of this Agreement. This Agreement will be deemed modified to the extent of such exemption or exclusion and shall remain enforceable as between the parties in all other respects.
10.4 Assignment. This Agreement may not be assigned, delegated, or otherwise transferred, in whole or in part, by operation of law or otherwise, by either Party without the other Party’s express prior written consent, except in the event of a merger, acquisition, sale, or corporate reorganization of either Party. Subject to the foregoing, this Agreement shall be binding on the Parties hereto and their respective successors and assigns. Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void.
10.5 Notices. Each Party must deliver all notices, consents, and approvals required or permitted under this Agreement in writing to the Point of Contact of the other Party at the address/email listed on first page, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized overnight carrier. Notice will be effective upon receipt or refusal of delivery. Each Party may change its address for receipt of notice by giving notice of such change to the other Party. Mail that is not registered or certified, email messages, facsimiles or verbal communications shall not be considered “Notice” for the purpose of this Section.
10.6 Force Majeure. Neither Party shall be liable for any default or delay in the performance of its obligations under this Agreement: (a) if and to the extent such default or delay is caused, directly or indirectly, by: fire, flood, earthquake, elements of nature or acts of God, riots, civil disorders, rebellions or revolutions in any country, or any other similar cause beyond the reasonable control of such Party, and (b) provided the non-performing Party is without fault in causing such default or delay, and such default or delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the non-performing Party through the use of alternate sources, workaround plans or other. In such event the non-performing Party shall be excused from further performance or observance of the obligation(s) so affected for as long as such circumstances prevail and such Party continues to use its best efforts to recommence performance or observance whenever and to whatever extent possible without delay. Any Party so delayed in its performance shall immediately notify the Party to whom performance is due by telephone (to be confirmed by e-mail, within two (2) days of the inception of such delay) and describe at a reasonable level of detail the circumstances causing such delay.
10.7 Branding and Publicity.
10.7.1 Branding. Respada shall make commercially reasonable efforts to accommodate any Client branding in Client Work. Client will contribute all applicable marketing/branding materials at its own cost. Client Work Products will include Client branding at Client’s request and cost. Request for Client branding if needed shall be made within 10 days from the date of any SOW.
10.7.2 Publicity. Respada shall not use Client’s or its affiliate’s name, logo, or mark or refer to Client or its affiliates, in any media release, public announcement, including on any website or in any promotional or marketing materials or communications, publicity, customer lists or business presentations through any medium to the public or others without the written consent of Client.
10.8 Dispute Resolution.
10.8.1 Informal Dispute Resolution. Prior to the initiation of formal dispute resolution procedures as to any dispute (except as provided in Section 10.9.2), the Parties shall first attempt to resolve each dispute informally, as follows:
(a) The Parties agree that the Point of Contact for this Agreement, nominated by the respective Parties, shall attempt in good faith to resolve all disputes. In the event the above designated persons, being unable to resolve a dispute in an amount of time that either Party deems reasonable under the circumstances, such Party may request, submission of the dispute, for a binding arbitration, as prescribed in section 10.9.2
10.8.2 Governing Law. This Agreement, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by, and enforced in accordance with, the internal laws of England and Wales, including its statutes of limitations, without regard to its Conflict of Laws provisions.
10.8.3 Arbitration. Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the International Centre for Dispute Resolution Canada (“ICDR Canada”) in accordance with the Canadian Arbitration Rules of the ICDR for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Ontario, Canada. The Tribunal shall consist of a sole arbitrator to be nominated by the ICDR Canada. The language of the arbitration shall be English. The substantive law applicable shall be the laws of England and Wales. If arbitration or any other legal proceedings are necessary to enforce this Agreement, the prevailing party shall be entitled to reasonable legal fees, costs and expenses
10.10 Construction. Section headings are included in this Agreement merely for convenience of reference; they are not to be considered part of this Agreement or used in the interpretation of this Agreement. When used in this Agreement, “including” means “including without limitation.” No rule of strict construction will be applied in the interpretation or construction of this Agreement. In the event of any conflict between these General Terms and Conditions and a Statement of Work, these General Terms and Conditions will control unless the Statement of Work expressly refers to the Parties’ intent to make an exception to the terms of this General Terms and Conditions for that Statement of Work. For the avoidance of doubt, all amounts set forth in this Agreement are expressed in United States Dollars.
10.11 Waiver. All waivers must be in writing and signed by the Party waiving its rights. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. A delay or omission by either Party hereto to exercise any right or power under the Agreement shall not be construed to be a waiver thereof.
10.12 Entire Agreement; Amendments. This Agreement is the final, complete, and exclusive agreement of the Parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous communications and understandings between the Parties. No modification of or amendment to this Agreement will be effective unless in writing and signed by both Parties.
10.13 Use of Subcontractors. Respada may perform certain of its tasks or duties under this Agreement using one or more consultants or subcontractors. Respada shall remain solely responsible at all times for the performance of the Services in accordance with the terms hereof by such consultants or subcontractors.
Agreed & Accepted on behalf of ‘Client’ by proceeding to complete the form.
Exhibit A [Statement of Work]
(Deliverables)
SELETED LINE ITEMS FROM HTTPS://RESPADA.COM/JANUS-SIGNUP-FORM
Payment Schedule
1. Advance payment: 100% per https://respada.com/janus-signup-form
Exemption/Exclusion
Nil