This Professional Services Agreement (“Agreement”) governs the professional services provided by Insightly Inc. (“Services Provider”) to you (the “Customer”) under the Statement of Work (the “Statement of Work”) entered into by Service Provider and Customer on the date set forth therein (the “Effective Date”).
In consideration of the premises and the mutual covenants contained herein, Customer and Services Provider hereby agree as follows:
1.1 Performance of Services. Services Provider will perform the services specified in the Statement of Work (the “Services”) in accordance with the terms and conditions of this Agreement and the Statement of Work.
1.2 Customer Responsibilities. Customer will: (i) provide qualified personnel who are capable of performing Customer’s duties and tasks under the Statement of Work; (ii) provide Services Provider with access to Customer’s sites and facilities during Customer’s normal business hours and as otherwise reasonably required by Services Provider to perform Services; (iii) provide Services Provider with such working space and office support (including access to telephones, photocopying equipment, and the like) as Services Provider may reasonably request; and (iv) perform Customer’s duties and tasks under the Statement of Work, and such other duties and tasks as may be reasonably required to permit Services Provider to perform the Services. Customer will also make available to Services Provider any data, information and any other materials required by Services Provider to perform Services, including, but not limited to, any data, information or materials specifically identified in the Statement of Work (collectively, “Customer Materials”). Customer will be responsible for ensuring that all such Customer Materials are accurate and complete.
1.3 Designated Contacts. Each party has designated in the Statement of Work one or more individuals who will serve as the point(s) of contact between the parties for all matters relating to Services to be performed thereunder. A party may designate new contacts by written notice to the other party.
1.4 Relationship of the Parties. Services Provider is performing Services as an independent contractor and nothing in this Agreement will be construed as establishing an employment, agency, partnership or joint venture relationship between Customer and Services Provider or any Services Provider personnel. Services Provider has no authority to bind Customer by contract or otherwise with any third party. Services Provider acknowledges and agrees that its personnel are not eligible for or entitled to receive any compensation, benefits or other incidents of employment that Customer makes available to its employees. Services Provider is solely responsible for all taxes, expenses, withholdings and other similar statutory obligations arising out of the relationship between Services Provider and its personnel and the performance of Services by such personnel.
2.1 Fees and Expenses. For Services Provider’s performance of Services, Customer will pay Services Provider fees calculated in accordance with the terms set forth in the Statement of Work. In addition, Customer will reimburse Services Provider for all reasonable and customary travel, lodging and other related expenses incurred by Services Provider or its personnel in connection with the performance of Services. At Customer’s request, Services Provider will provide Customer with receipts and other customary documentation for all such expenses.
2.2 Payment Terms. Services Provider will invoice Customer for all applicable fees and expenses based on Services performed by Services Provider, such fees and expenses and related terms as further set forth in the Statement of Work. Customer will pay each such invoice no later than thirty (30) days after Customer’s receipt thereof.
2.3 Taxes. All fees, expenses and other amounts payable to Services Provider hereunder do not include any sales, use, value added or other applicable taxes, tariffs or duties, payment of which will be the sole responsibility of Customer (excluding any taxes based on Services Provider’s net income). Customer will promptly reimburse Services Provider for any such amounts that Services Provider pays on Customer’s behalf.
3.1 Services Provider. Subject to Customer’s rights in the Customer Materials, Services Provider will exclusively own all rights, title and interest, in and to any software programs, tools, utilities, processes, inventions, devices, methodologies, specifications, documentation, techniques and materials of any kind used or developed by Services Provider or its personnel in connection with performing Services (collectively “Services Provider Materials”), including all worldwide patent rights, copyright rights, trade secret rights, know-how and any other intellectual property rights therein. Customer will have no rights in any Services Provider Materials except as expressly set forth in this Agreement.
3.2 Customer. As between Services Provider and Customer, Customer will exclusively own all rights, title and interest in and to the Customer Materials., including all worldwide patent rights, copyright rights, trade secret rights, know-how and any other intellectual property rights therein.
3.3 Freedom of Action. Nothing in this Agreement will be deemed to restrict or limit Services Provider’s right to perform similar services for any other party or to assign any employees or subcontractors to perform similar services for any other party; provided that Services Provider complies with its obligations under Section 4 with respect to Customer’s Confidential Information.
CONFIDENTIAL INFORMATION AND DATA PROTECTION
4.1 Confidential Information. “Confidential Information” means: (i) Customer Materials and Services Provider Materials; (ii) any business or technical information that a party discloses to the other party and designates as “confidential” or “proprietary” at the time of disclosure; and (iii) any information that, due to its nature or the circumstances of its disclosure, the receiving party knows or has reason to know should be treated as confidential or proprietary.
4.2 Exclusions. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without restrictions on use or disclosure; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) is rightfully received by the receiving party from a third party, who has the right to provide such information and who provides it without restrictions on use or disclosure.
4.3 Use and Disclosure Restrictions. Each party will not use any Confidential Information disclosed by the other party except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and subcontractor is bound by a written agreement that contains use and nondisclosure restrictions consistent with the terms set forth in this Section. Each party will employ all reasonable steps to protect all Confidential Information disclosed by the other party from unauthorized use or disclosure, including, but not limited to, all steps that it takes to protect its own information of like importance. The foregoing obligations will not restrict either party from disclosing such Confidential Information: (i) pursuant to the order or requirement of a court, tribunal, administrative agency, regulator or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; (ii) to its legal or financial advisors; (iii) as required under applicable securities regulations; and (iv) subject to customary restrictions, to present or future providers of venture capital and/or potential private investors in or acquirers of such party.
4.4 Data Protection. In relation to all personal data to which any data protection legislation in the European Economic Area and/or the United Kingdom (“EU Data Protection Legislation” and as “personal data” is defined in such EU Data Protection Legislation) provided or made available to the Services Provider by or on behalf of the Customer: (a) the Services Provider acknowledges that, as between the parties, it acts only as a processor and shall only process such personal data in order to perform the Services in accordance with this Agreement and the Customer’s instructions issued from time to time (which the Customer shall ensure are compliant with this Agreement and any applicable EU Data Protection Legislation), and (b) the Services Provider shall take appropriate technical and organizational measures against (i) unauthorized or unlawful processing of such personal data; and (ii) accidental loss or destruction of, or damage to, such personal data.
5.1 Services Warranty. Services Provider warrants that Services will be performed in a good and workmanlike manner consistent with applicable industry standards. This warranty will be in effect for a period of thirty (30) days from the completion of any Services. As Customer’s sole and exclusive remedy and Services Provider’s entire liability for any breach of the foregoing warranty, Services Provider will, at its sole option and expense, promptly re-perform any Services that fail to meet this limited warranty or refund to Customer the fees paid for the non-conforming Services.
5.2 Warranty Disclaimers. THE EXPRESS WARRANTIES IN SECTION 5.1 ARE IN LIEU OF, AND SERVICES PROVIDER DISCLAIMS, ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
INDEMNIFICATION. Each party (an “indemnifying party”) will defend, at its expense, any action brought against the other party (an “indemnified party”) by a third party to the extent that it is based upon a claim for bodily injury, personal injury (including death) to any person, or damage to tangible property resulting from the negligent acts or willful misconduct of the indemnifying party or its personnel, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against the indemnified party (or are payable in settlement by the indemnified party); provided that the indemnified party: (i) promptly notifies the indemnifying party in writing of the claim; (ii) grants the indemnifying party sole control of the defense and settlement of the claim; and (iii) provides the indemnifying party, at the indemnifying party’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. The indemnifying party will have no obligation under this Section to the extent any claim is based on the negligent acts or willful misconduct of the indemnified party or its personnel.
LIMITATION OF LIABILITY. IN NO EVENT WILL SERVICES PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR COSTS OF PROCURING SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SERVICES PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SERVICES PROVIDER’S TOTAL LIABILITY TO CUSTOMER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO SERVICES PROVIDER BY CUSTOMER UNDER THE STATEMENT OF WORK GIVING RISE TO ANY LIABILITY HEREUNDER.
NON-SOLICITATION. During the term of this Agreement and for a period of twelve (12) months thereafter, Customer will not recruit or otherwise solicit for employment any Services Provider employees or subcontractors who participated in the performance of Services without Services Provider’s express prior written approval.
TERM AND TERMINATION
9.1 Term. This Agreement will commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, will remain in force and effect for as long as Services Provider is performing Services pursuant to the Statement of Work.
9.2 Termination. Either party nay terminate this Agreement (including the Statement of Work) if the other party breaches any material term of this Agreement or Statement of Work and fails to cure such breach within thirty (30) days after receipt of written notice thereof.
9.3 Effect of Termination. Upon the expiration or termination of this Agreement: (i) Services Provider will promptly return to Customer all Customer Materials; (ii) each party will promptly return to the other party all Confidential Information of the other party in its possession or control; and (iii) Customer will, within thirty (30) days after receipt of Services Provider’s invoice, pay all accrued and unpaid fees and expenses.
9.4 Survival. The rights and obligations of the parties contained in Sections 2, 3, 4, 6, 7, 8, 9.3, 9.4 and 10 will survive the expiration or termination of this Agreement or the Statement of Work.
10.1 Assignment. Services Provider may not assign this Agreement or Statement of Work without Customer’s prior written consent, except that Services Provider may assign this Agreement or Statement of Work, without Customer’s consent, to an affiliate or to a successor or acquirer, as the case may be, in connection with a merger or acquisition, the sale of all or substantially all of Services Provider’s assets, or the sale of that portion of Services Provider’s business to which this Agreement relates. Subject to the foregoing, this Agreement will bind and benefit the parties and their respective successors and assigns.
10.2 No Election of Remedies. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will not be deemed an election of remedies and will be without prejudice to its other remedies under this Agreement or available at law or in equity or otherwise.
10.3 Governing Law. This Agreement and the Statement of Work will be governed by and construed in accordance with the laws of the State of California, excluding its body of law controlling conflict of laws. Any legal action or proceeding arising under this Agreement or Statement of Work will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein.
10.4 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
10.5 Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; or (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid. All such notices will be sent to the addresses set forth in the Statement of Work or to such other address as may be specified by either party to the other party in accordance with this Section.
10.6 Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
10.7 Entire Agreement. This Agreement, together with the Statement of Work, constitutes the complete and exclusive agreement of the parties with respect to its subject matter and supersedes all prior understandings and agreements, whether written or oral, with respect to its subject matter. In the event of a conflict, the terms and conditions of this Agreement will take precedence over the terms and conditions of the Statement of Work. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto.
10.8 Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for the payment of money) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.