As used herein, the following terms shall have the following meanings:
(a) “Agreement” means collectively: (i) the cover page attached hereto which has been executed by each of CONNECT GLOBAL and Client; (ii) these Terms and Conditions; and (iii) all Statements of Services.
(b) “Change Order” means a document signed by CONNECT GLOBAL and Client that references a particular Statement of Services and changes any Service, CONNECT GLOBAL Deliverable or any other term of such Statement of Services.
(c) “Client Materials” means any documentation, content, software or other materials delivered to CONNECT GLOBAL by Client in connection with the Services. Client Materials may include, by way of example, text which Client desires CONNECT GLOBAL to translate as part of the Services.
(d) “Confidential Information” means the material terms of this Agreement and any confidential or proprietary information disclosed by one Party (the “Disclosing Party”) to the other Party hereunder (the “Receiving Party”), which has been designated by the Disclosing Party as “proprietary” or “confidential” in a written notice thereof to the Receiving Party. Notwithstanding anything to the contrary in the foregoing, “Confidential Information” shall not include information that: (i) is already in the Receiving Party’s possession at the time of its disclosure through no wrongful act of the Receiving Party; (ii) is or becomes publicly known through no wrongful act of the Receiving Party; (iii) is received from a third party who received such information in a manner not violative of similar confidentiality restrictions or this Agreement; or (iv) is lawfully required to be disclosed to any governmental agency or is otherwise required to be disclosed by law.
(e) “Expenses” means any out-of pocket expenses incurred by CONNECT GLOBAL in the fulfillment of its obligations hereunder.
f) “Fees” means the compensation to be paid to CONNECT GLOBAL for its Services hereunder as specified in each Statement of Services.
(g) “Guidelines” means the detailed work product specifications applicable to a CONNECT GLOBAL Deliverable as specified, if at all, in each Statement of Services. Guidelines may include, by way of example, a glossary of defined terms or a terminology list which Client desires CONNECT GLOBAL to incorporate into a CONNECT GLOBAL Deliverable.
(h) “Intellectual Property Rights” means all: (i) patents, patent rights, and patent registrations and applications, wherever registered or filed; (ii) copyrights and copyright registrations and applications, wherever registered or filed; (iii) trade names, trademarks, service marks, whether common law or statutory, and related registrations, and the goodwill relating to same; and (iv) trade secrets, know-how, rights in packaging, goodwill, moral rights and other intellectual property rights and proprietary rights, whether such rights arise under the laws of the United States or any state, or any other country or jurisdiction.
(i) “CONNECT GLOBAL Deliverable” means any materials or other items produced by CONNECT GLOBAL and delivered to Client hereunder in connection with the Services. A CONNECT GLOBAL Deliverable may include, by way of example, Client Materials which have been translated by CONNECT GLOBAL.
(j) “Delivery Schedule” means any delivery dates or time periods specified or referenced in each Statement of Services.
(m) “Parties” means CONNECT GLOBAL and Client and “Party” means CONNECT GLOBAL or Client.
(l) “Services” means CONNECT GLOBAL’s services hereunder. Such services may include, but are not limited to, the development and delivery of CONNECT GLOBAL Deliverables under CONNECT GLOBAL’s Business Services program or Business Pro Services program, all as specified in each Statement of Services.
m) “Statement of Services” means: (i) any statement of Services attached to and referencing this Agreement which is signed by CONNECT GLOBAL and Client; or (ii) any statement of Services referencing this Agreement (but set forth in other documents, notices, faxes, emails or other communications between CONNECT GLOBAL and Client) which may or may not be signed by CONNECT GLOBAL and Client but show a clear intention of CONNECT GLOBAL and Client to form an agreement regarding the subject matter stated therein. Each Statement of Services, whether in the form described in subclause (i) or (ii) above, shall set forth all of the material requirements and parameters for each separate assignment or project worked on by CONNECT GLOBAL for Client hereunder. Such material requirements and parameters shall include, at the very least, a description of the Services to be provided by CONNECT GLOBAL, a Delivery Schedule for such Services and the payment terms for CONNECT GLOBAL’s Fees. CONNECT GLOBAL and Client contemplate that at least one but possibly more Statements of Services may be agreed upon under this Agreement. Each Statement of Services is part of this Agreement and is subject to change pursuant to these Terms and Conditions.
(n) “Term” has the meaning specified in Section 11 below.
(o) “Terms and Conditions” means these terms and conditions, all of which govern this Agreement.
Other terms used in this Agreement are defined in the context in which they are used and shall have the meanings there indicated.
(a) Services. Subject to these Terms and Conditions, CONNECT GLOBAL agrees to provide, with the reasonable cooperation of Client’s personnel, the Services described in each Statement of Services. CONNECT GLOBAL shall provide such Services in accordance with the Delivery Schedule and any applicable Guidelines.
(b) Guidelines. The specific Guidelines, if any, to be followed by CONNECT GLOBAL in the rendition of Services hereunder shall be those Guidelines set forth in each Statement of Services. Unless otherwise provided in any such Guidelines, CONNECT GLOBAL shall follow such guidelines as are customary in the industry for the rendition of services similar to the Services to be performed hereunder.
(c) Tasks. The specific tasks, if any, to be performed by Client in order for CONNECT GLOBAL to perform Services hereunder shall include those tasks set forth in each Statement of Services. In any event, whether or not specific tasks are set forth for Client in the Statement of Services, Client shall respond promptly to any request from CONNECT GLOBAL for information, approvals, or authorizations that are reasonably necessary for CONNECT GLOBAL to perform the Services hereunder.
(d) Representatives. The Parties may designate in each Statement of Services one or more individuals to act as such Party’s representative under this Agreement (a “Representative”). Each Party’s Representative shall be the primary liaison to the other Party with respect to all matters pertaining to the performance of this Agreement and, as such, shall be deemed to have the authority of each Party to act with respect thereto. Each Party may change its Representative(s) at any time upon written notice thereof to the other Party.
(a) Review Period. For each CONNECT GLOBAL Deliverable that is produced by CONNECT GLOBAL, Client shall, within ten (10) calendar days (the “Review Period”) of its receipt of such CONNECT GLOBAL Deliverable, together with a statement from CONNECT GLOBAL that the CONNECT GLOBAL Deliverable is complete (a “Completion Notice”), (i) review the CONNECT GLOBAL Deliverable and accept it if it conforms with the specifications and Guidelines for such CONNECT GLOBAL Deliverables as set forth in the Statement of Services, or (ii) notify CONNECT GLOBAL in writing of non-acceptance, documenting in reasonable detail any and all nonconformities with such specifications and Guidelines.
(b) Corrections. CONNECT GLOBAL shall, upon receipt of a notice of non-acceptance under Section 3(a) above, use its reasonable efforts to correct the specified nonconformities and deliver a corrected CONNECT GLOBAL Deliverable to Client, together with a Completion Notice, as soon as is reasonably practicable thereafter. Client shall, after receipt of such Completion Notice from CONNECT GLOBAL, review the corrected CONNECT GLOBAL Deliverable and report to CONNECT GLOBAL as provided in Section 3(a) above. Client shall do so promptly using diligent efforts, but in no event shall such review by Client exceed ten (10) calendar days after receipt of such notice from CONNECT GLOBAL. Unless otherwise agreed in writing by CONNECT GLOBAL, the foregoing acceptance/rejection cycle will be implemented by CONNECT GLOBAL (i) at no cost to Client and (ii) one (1) time for each CONNECT GLOBAL Deliverable.
(c) Acceptance. A CONNECT GLOBAL Deliverable shall be deemed accepted by Client under Section 3 (a) and (b) above if: (i) Client notifies CONNECT GLOBAL in writing of its acceptance, in which event the acceptance date shall be the date of such notice; (ii) Client fails to notify CONNECT GLOBAL in writing within the Review Period of any material nonconformities as described in this Section, in which event the acceptance date shall then be the last day of said period; or (iii) Client places in productive use any portion of the CONNECT GLOBAL Deliverable, in which event the acceptance date shall be the first day of such placement in productive use.
Any CONNECT GLOBAL Deliverable that is produced by CONNECT shall be deemed accepted by Client if: (i) Client notifies CONNECT GLOBAL in writing of its acceptance, in which event the acceptance date shall be the date of such notice; (ii) Client places in productive use any portion of the CONNECT GLOBAL Deliverable, in which event the acceptance date shall be the first day of such placement in productive use; or (iii) Client fails to notify CONNECT GLOBAL in writing within the Review Period that CONNECT GLOBAL has committed a material breach of this Agreement under Section 11 (b) below, in which event the acceptance date shall then be the last day of said period.
CONNECT GLOBAL hereby acknowledges and agrees that each CONNECT GLOBAL Deliverable and all Intellectual Property Rights thereto (such deliverable and rights are referred to in this Section as the “Work”) are and shall be deemed the property of Client. To the extent the Work is copyrightable, the Work shall be deemed to be a work-made-for-hire for Client. If for any reason the Work, or any portion thereof, is deemed not to be a work made-for-hire for Client, then CONNECT GLOBAL hereby irrevocably assigns, conveys and transfers to Client all of its right, title and interest in and to the Work. The foregoing provisions regarding ownership of the Work shall apply only in the event Client is in full compliance with the provisions of Section 6 below.
(a) No Disclosure. The Parties acknowledge that they each may be exposed to or acquire Confidential Information of the other Party. Each Party agrees to hold such Confidential Information in strict confidence and not to copy, reproduce, sell, assign, license, market, transfer, give or otherwise disclose such Confidential Information to third parties, or to use such information for any purpose other than for the purpose of performing such Party’s obligations under this Agreement. Each Party shall use reasonable efforts to advise the other immediately in the event that it learns or has reason to believe that a violation of this Section has occurred or is likely to occur, and will reasonably cooperate with the other Party in seeking injunctive relief or other appropriate remedies. The obligations of the Parties under this Section 5(a) shall commence on the Effective Date and continue for a period of five (5) years after the Term.
(b) Subcontractors. CONNECT GLOBAL may retain subcontractors and independent contractors to provide the Services. Subject to the exclusive remedies and limitations on liability set forth in these Terms and Conditions, CONNECT GLOBAL shall remain responsible for Services performed by any of its independent contractors and subcontractors to the same extent as if such Services were being performed by CONNECT GLOBAL itself.
(c) No Solicitation. Both Parties agree not to engage in any attempt to hire (as an employee, consultant, independent contractor or subcontractor) any employee, consultant, independent contractor or subcontractor of the other Party. The obligations of the Parties under this Section 5(c) shall commence on the Effective Date and continue for a period of two (2) years after the Term.
(a) Fees. Client shall pay all Fees to CONNECT GLOBAL without deduction (whether by way of set-off, counterclaim or otherwise) in accordance with the payment schedule set forth in the Statement of Services. In the event that any payment of Fees is not made when due, CONNECT GLOBAL retains the right to charge interest to Client on overdue amounts at the rate of one and one-half percent (1.5%) per month. In addition, Client will be responsible for any collection costs incurred by CONNECT GLOBAL in enforcing the provisions of this Section 6 including, but not limited to, reasonable attorneys’ fees and expenses.
(b) Expenses. Unless otherwise provided in the Statement of Services, Client shall not be responsible for reimbursing CONNECT GLOBAL for any Expenses incurred by CONNECT GLOBAL in the rendition of the Services.
(c) Taxes. Client shall pay, or reimburse CONNECT GLOBAL, for all sales, use, transfer, value added or other taxes and all duties, whether national, state, or local, however designated, that are levied or imposed by reason of the Services provided hereunder; excluding, however, income taxes on CONNECT GLOBAL’s income or profits.
Changes to a Statement of Services shall be made using a Change Order. For any Client-proposed change to the scope of a Statement of Services, Client shall provide a written request to CONNECT GLOBAL detailing the desired changes. Within a reasonable time following receipt of any proposed change request and upon the mutual agreement of the Parties, CONNECT GLOBAL, with the cooperation of Client where reasonably required, shall provide Client with a written estimate of the impact on resources, time to perform and charges that would be caused by the implementation of the change. Client shall approve or reject such estimate within five (5) business days of receipt unless otherwise agreed by the Parties. If Client approves such estimate, then all changes in resources, time to perform and charges shall be reflected in a Change Order and each Party’s obligations under this Agreement shall be deemed to be modified accordingly upon execution of such Change Order. If Client fails to approve such estimate, each Party’s obligations under the Statement of Services, as applicable, shall remain unchanged and CONNECT GLOBAL shall have no further responsibility with respect to the proposed change.
(a) By CONNECT GLOBAL. CONNECT GLOBAL represents and warrants, subject to Section 8(b) and (c) below, that: (i) it has the right, power and authority to enter into this Agreement; and (ii) the Services will be performed using reasonable skill and care in accordance with standards customary in the industry for the rendition of services similar to the Services to be performed hereunder.
(b) Exclusions. The representations and warranties described in Section 8(a) above do not apply: (i) to the extent changes to CONNECT GLOBAL Deliverables are made by Client or a third party (unless CONNECT GLOBAL has expressly approved such changes in writing); (ii) to Client Materials; or (iii) to third party materials, items or intellectual property. CONNECT GLOBAL shall not be liable for any failure to comply with its obligations hereunder (including, but not limited to, a failure to meet a delivery deadline in the Delivery Schedule) if such failure is a result of Client’s failure to perform its obligations hereunder. For any delay in completion of CONNECT GLOBAL’s obligations under this Agreement that occurs as a result of Client or of untimely, inaccurate or incomplete performance by Client of Client’s obligations under this Agreement, CONNECT GLOBAL may require additional resources or an extension of time in order to perform its obligations. Within a reasonable time after CONNECT GLOBAL becomes aware of any such delay that CONNECT GLOBAL reasonably determines will impact the performance of its obligations, CONNECT GLOBAL shall notify Client of the extensions of time and additional resources (including but not limited to increased personnel), as well as any corresponding additional costs therefor, that are necessary for CONNECT GLOBAL to perform such obligations.
(c) Disclaimer of Warranty. THE WARRANTIES SET FORTH IN THIS SECTION 8 ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY CONNECT GLOBAL. CONNECT GLOBAL DISCLAIMS, AND CLIENT HEREBY WAIVES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(d) By Client. Client represents and warrants that: (i) it has the right, power and authority to enter into this Agreement; (ii) it is the owner of, or authorized to use and deliver to CONNECT GLOBAL, the Client Materials and CONNECT GLOBAL and its subcontractors are and will be permitted to use the Client Materials to provide the Services under this Agreement; (iii) the Client Materials, and the use of such Client Materials by CONNECT GLOBAL and its subcontractors, do not and will not infringe upon or violate any applicable laws or regulations or the rights of any third party, including, without limitation, any third party Intellectual Property Rights; and (iv) the Client Materials submitted under each Statement of Services do not and will not contain information that is incorrect, incomplete or misleading and that is has submitted all information required for CONNECT GLOBAL to perform its Services hereunder in accordance with Section 2(a) and (b) above, including, but not limited to, information about the intended use of the CONNECT GLOBAL Deliverables and specific appropriateness and suitability guidelines therefore.
NEITHER PARTY SHALL HAVE LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR FOR LOSS OF PROFITS, BUSINESS OPPORTUNITY, REPUTATION OR ANTICIPATED SAVINGS, OR FOR CORRUPTION, ALTERATION, DAMAGE, LOSS OR MISTRANSMISSION (AS APPLICABLE) OF ANY PARTYS’ OR ANY THIRD PARTY’S DATA OR LOSS OR DAMAGE RESULTING FROM THE INADEQUACY OF SECURITY OF DATA DURING TRANSMISSION VIA PUBLIC ELECTRONIC COMMUNICATIONS NETWORKS OR FACILITIES, HOWEVER SUCH DIRECT OR INDIRECT DAMAGES OR LOSSES MAY ARISE EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. EXCEPT FOR LIABILITY ARISING UNDER SECTION 10 BELOW, THE AGGREGATE LIABILITY OF A PARTY TO THE OTHER PARTY FOR ANY CAUSE OF ACTION OR CLAIM (WHETHER UNDER CONTRACT OR TORT) SHALL BE LIMITED TO THE AMOUNT OF FEES TO BE PAID TO CONNECT GLOBAL BY CLIENT HEREUNDER. BOTH PARTIES AGREE THAT THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE CHARGES TO BE PAID BY CLIENT HEREUNDER AND THE LIMITATIONS SET FORTH IN THIS SECTION, REFLECTS THE ALLOCATION OF RISK UNDERSTOOD AND AGREED UPON BY THE PARTIES.
(a) Indemnification. Each Party (the “Indemnitor”) shall defend, indemnify, and hold harmless the other Party, its employees, officers, directors, shareholders, subcontractors, agents, successors and permitted assigns (collectively, the “Indemnitee”) from and against any and all liabilities, obligations, damages, deficiencies, costs and expenses, including reasonable attorneys’ fees and the costs to enforce these indemnification provisions (collectively, the “Damages”), arising out of or relating to any third party claims or demands based on any breach by the Indemnitor of any of its representations and warranties contained herein, or the inaccuracy of any representation or warranty of Indemnitor contained herein.
(b) Indemnification Procedures. As soon as an Indemnitee becomes the subject of any claim, demand, lawsuit, proceeding or other action which may give rise to Damages pursuant to Section 10(a) above (collectively, a “Claim”), it shall send a notice thereof to the Indemnitor (a “Claim Notice”). The Indemnitee may, at its own cost, participate in the investigation, trial and defense of such Claim. The Indemnitor and Indemnitee shall cooperate with each other in any notifications to insurers. The Indemnitor shall be entitled to participate in and, if it so elects, (i) to take control of the defense and investigation of the Claim, (ii) to employ and engage attorneys (who are reasonably acceptable to Indemnitee) to handle and defend the Claim, at the Indemnitor’s cost, risk, and expense (unless the named parties to an action or proceeding include both the Indemnitor and the Indemnitee and the Indemnitee has been advised in writing by counsel that there may be one or more legal defenses available to the Indemnitee that are different from or additional to those available to the Indemnitor), and (iii) to compromise or settle the Claim, which compromise or settlement shall be made only with the written consent of the Indemnitee, such consent not to be unreasonably withheld. If the Indemnitor fails to assume the defense of the Claim within fifteen (15) days after receipt of the Claim Notice, the Indemnitee will (upon delivering notice to such effect to the Indemnitor) have the right to undertake, at the Indemnitor’s cost and expense, the defense, compromise or settlement of the Claim on behalf of and for the account and risk of the Indemnitor; provided, that the Claim shall not be compromised or settled without the written consent of the Indemnitor, which consent shall not be unreasonably withheld.
(a) Term. The term of this Agreement (the “Term”) shall become effective upon the Effective Date and continue in effect until: (i) this Agreement is terminated under Section 11(b) below; or (ii) all Services have been rendered by CONNECT GLOBAL pursuant to any and all Statements of Services.
(b) Termination. This Agreement may be terminated by either Party, due to a material breach of this Agreement by the other Party which has not been cured within thirty (30) days after notice thereof. For any material breach of this Agreement by Client, CONNECT GLOBAL may, in addition to terminating this
Agreement, immediately suspend the performance of Services. Failure by Client to pay any Fees to CONNECT GLOBAL hereunder shall be deemed a material breach of this Agreement.
(a) Independent Contractor. CONNECT GLOBAL, in its performance of this Agreement, is acting as an independent contractor and not as an employee or agent of Client.
(b) Entire Agreement. This Agreement sets forth the entire understanding and agreement of the Parties with respect to its subject matter and supersedes and merges any prior understandings or agreements, oral or written. This Agreement may not be modified except by a writing executed by both CONNECT GLOBAL and Client.
(c) Waiver. The waiver by either Party of any breach or failure to enforce any of the terms or conditions of this Agreement at any time shall not in any way affect, limit or waive either Party’s rights thereafter to enforce and compel strict compliance with every term and condition of this Agreement.
(d) Governing Law. This Agreement and performance hereunder shall be governed by the laws of the State of Washington (without regard to its conflict of laws provisions). Both Parties consent to the jurisdiction of the State and Federal Courts situated in the King County, Washington with respect to any action that may be brought hereunder. No action, regardless of form, arising out of this Agreement shall be brought by either Party more than one (1) year after such cause of action shall have accrued..
(e) Assignment. This Agreement shall be binding on the Parties and their respective successors and permitted assigns. Neither Party may assign this Agreement without the written consent of the other, which consent shall not be unreasonably withheld or delayed.
(f) Notice. Any notice, request or other communication required or permitted to be given by one Party to the other Party hereunder shall be in writing and shall be delivered by (i) personal delivery, (ii) express, registered or certified mail, return receipt requested, postage prepaid, (iii) internationally recognized courier service or (iv) facsimile transmission or by email, with the original being simultaneously delivered by one of the methods described in clauses (i) – (iii), addressed to the other Party at its address as indicated on the cover page of this Agreement, or to such other address as the addressee shall have furnished to the other Party by like notice.
(g) Survival. Except as otherwise provided herein, any provision of this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement (including, but not limited to, the provisions of Sections 4, 6, 8, 9, 10 and 12) shall survive any termination or expiration of this Agreement and continue in full force and effect.
(h) Identification. CONNECT GLOBAL may identify Client as a client, in advertising, publicity, or similar materials distributed to prospective clients of CONNECT GLOBAL.
(i) Counterparts. This Agreement may be delivered by facsimile and executed in one or more counterpart copies, each of which shall be deemed an original and all of which shall together be deemed to constitute one agreement.