INDEPENDENT CONTRACTOR AGREEMENT
This Independent Contractor Agreement (“Agreement”) is entered into and effective upon the date Contractor accepts these terms via Sourcepass’ online acceptance process (the “Effective Date”) between Sourcepass, LLC and the Contractor accepting these terms and executing the applicable Statement of Work (“Contractor”).
1. Purpose of Engagement. Contractor understands that Sourcepass has been engaged by its customer(s) to perform certain services and to provide certain deliverables (“the Engagement(s)”). Sourcepass may agree from time to time to retain the services of Contractor (the “Engagement(s)”) to perform the services (“Services”) which relate to the Engagement(s) as specified in one or more individual Statement(s) of Work (“SOW”) which, when agreed and signed by both parties, shall be considered attached hereto and made part hereof, and Contractor agrees to furnish Sourcepass said Services for the Term and under the conditions set forth in this Agreement. It is expressly understood that the Contractor is an independent contractor and not an employee of Sourcepass.
2. Personnel. Details of person(s) supplied by Contractor to perform the Services for Sourcepass (“Personnel”) shall be set forth in one or more individual SOWs hereto. If Contractor and Sourcepass both agree that more Personnel are required to perform new tasks or tasks set forth in the SOW, more Personnel may be added at mutually agreed upon rates by modifying or adding SOWs. Personnel providing Services for Sourcepass may be employees of Contractor or independent contractors engaged by Contractor to perform the Services. The Personnel shall at all times be under the supervision and control of Contractor; provided, however, that Contractor may delegate from time to time such supervision and control to Sourcepass with respect to certain daily activities of the Personnel in conjunction with performance of the services. Contractor agrees to cooperate with Sourcepass in assigning Personnel to perform the Services who are acceptable to Sourcepass and in removing and replacing Personnel when warranted, such decisions are to be made by Contractor subject to Sourcepass approval, which will not be unreasonably withheld. Contractor will assign personnel to perform Services for Sourcepass in accordance with specific terms and conditions of individual SOWs and may assign Personnel as it is mutually agreed with Sourcepass to perform Services within the budget and timeline outlined in the corresponding SOW.
3. Facilities. The Statement of Work(s) shall set forth which facility may be used to perform the Services. The choice of facility will depend on the particular task being performed and may change during the course of this Agreement. Additional facility and material requirements may be specified in the Statement(s) of Work.
4. Term. The term of this Agreement shall begin on the Effective Date and shall continue for as long as Contractor is providing the services set forth in the applicable Statement of Work(s) or if terminated pursuant to Section 10 (Termination). The term of any Statement of Work will be defined in the Statement of Work, with a specific start date and end date of the Statement of Work included.
5. Contractor’s Compensation. During the term of this Agreement, Sourcepass agrees to compensate the Contractor at the hourly or other billing rate identified in the applicable Statement of Work for the Services. In addition, Sourcepass shall reimburse Contractor only for pre-approved actual out-of-pocket expenses incurred by Contractor in connection with performance of Services under this Agreement. Contractor shall bill Sourcepass at monthly intervals. Invoices shall be emailed to accountspayable@sourcepass.com.
Each invoice submitted by Contractor will provide complete supporting detail for each day on which Services were performed by Contractor, the dates of Services, hours worked at the negotiated rate on each day, and receipts or other suitable detail concerning related expenses. Sourcepass shall pay correct invoices within 30 days after receipt.
6. Ownership of Materials. All work performed by Contractor, including by or through Personnel, under or in connection with this Agreement (“Work”) is work for hire, and all worldwide copyrights, trademarks, patents, proprietary information, trade secrets, intellectual property and other rights (collectively, “Rights”) are and shall be deemed owned exclusively by Sourcepass, and not by Contractor or any Personnel, both during the performance of the Work and upon completion. To the extent that any portion of such Works do not fall within the specifically enumerated works that constitute “works made for hire” under applicable law, Contractor shall, and Contractor shall cause all Personnel to, irrevocably assign to Sourcepass in writing all of Contractor’s and Personnel’s right, title and interest in and to such portions of the Work. To the extent any Rights in the Work may vest in Contractor, Contractor hereby irrevocably assigns, transfers and conveys all Rights in the Work to Sourcepass. Contractor agrees to, and will cause all Personnel to execute any and all documents requested by Sourcepass that are reasonably necessary to effectuate the vesting of ownership of Rights to the Work in Sourcepass. Without limiting the foregoing, Contractor grants to, and shall cause all Personnel to grant, Sourcepass the perpetual, irrevocable, royalty-free right to use, copy, modify, sublicense, sell, and freely distribute materials produced under this Agreement. Contractor agrees to render all reasonably required assistance to Sourcepass to protect the rights here in above described. This Paragraph shall survive the cancellation, expiration or termination of this agreement.
7. Compliance with Sourcepass Policies and Budgets. Contractor agrees to perform to the best of Contractor’s abilities any and all work assigned by Sourcepass in accordance with Sourcepass policies and procedures and applicable work plans and budgets, including without limitation Sourcepass’ security policies and procedures. Without limiting the foregoing, Contractor shall perform the services in a timely, workmanlike and professional manner.
8. Contractor’s Responsibilities. Any Personnel shall remain employees or contractors of Contractor, and Contractor will be solely responsible for: recruiting, interviewing, hiring, disciplining and terminating its employees. Except as agreed otherwise by the parties, Personnel shall neither become employees or contractors of Sourcepass or Sourcepass’ client(s), nor be entitled to any rights, benefits, compensation, damages, or contributions under any employee benefit plan, or privileges of Sourcepass’ employees. Further, Contractor will:
(a) maintain all necessary personnel and payroll records for Personnel assigned to perform Services, including but not limited to I-9 certifications, government agency notifications and legally required employee notifications;
(b) timely pay net wages, any employee and employer share of required employment and related taxes and withholdings pertaining to Personnel, and provide any legally required benefits directly to Personnel, including but not limited to workers’ compensation insurance coverage, and compliance with local ordinances for paid benefits or paid leave;
(c) handle Personnel work-related claims and complaints;
(d) comply with all applicable laws, regulations and orders, including, but not limited to, the Fair Credit Reporting Act, Title VII of the Civil Rights Act of 1964, the Fair Labor Standards Act, the Immigration Reform and Control Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, Family Medical Leave Act, Workers’ Adjustment and Retraining Notification Act, any other employment non-discrimination or non-retaliation laws, and any similar state laws and local ordinances; and
(e) after review by Contractor, require all Personnel performing Services to execute Sourcepass’ Invention Assignment Agreement and Confidentiality Agreement requiring them to, at a minimum, (i) assign all inventions created while working for Sourcepass under this Agreement as described in Section 6; (ii) treat all Sourcepass information as confidential and proprietary; (iii) refrain from using third party confidential/proprietary information in connection with performing the Services for Sourcepass; and (iv) refrain from disclosing third party confidential/proprietary information to Sourcepass.
(f) maintain insurance coverage
Contractor shall ensure that its Personnel adhere to the provisions of this Agreement and will perform in accordance with applicable laws, regulations, and Sourcepass’ company policies.
9. Contractor’s Warranties. Contractor warrants that:
(a) Contractor’s performance of the Services called for by this Agreement does not and shall not violate any applicable law, rule, or regulation; any contracts with third parties; or any third-party rights in any patent, trademark, copyright, trade secret, or any other proprietary right;
(b) Contractor has full authority and sufficient right title, and interest in and to any developed computer programs, computer systems, data, computer documentation or other material whatsoever, exclusive of rights respecting programs, data and materials identified by Sourcepass as furnished to Sourcepass by third-party vendors, to grant and convey the rights accorded to Sourcepass under Paragraph 4 hereof;
(c) If applicable, for a period of twelve (12) months following installation (the “Warranty Period”), any software (and associated documentation) delivered to Sourcepass hereunder shall be free from significant programming errors and from defects in workmanship and materials; and shall conform to the performance capabilities, characteristics, specifications, functions and other descriptions and standards applicable thereto. In the event that defects are discovered during the Warranty Period, Contractor shall promptly remedy such defects at no additional expense to Sourcepass; and
(d) The software and all other products, documentation and other materials required to be delivered by Contractor to Sourcepass hereunder, the development and use by Sourcepass thereof, and the performance by Contractor of its obligations hereunder shall be in compliance with all applicable laws, rules-and regulations as of the date of delivery thereof.
(e) Contractor agrees that Sourcepass may create and use recordings of the voices and images of the likenesses of Contractor’s employees and agents, either singularly or together with other recordings and images, in connection with advertising and publicity by Sourcepass as well as other commercial and business purposes. Contractor understands that the term “images” encompasses any and all still photographs, video footage and any other digital or non-digital media. Contractor further consents to the reproduction and publication of said images and recordings by Sourcepass and its agents and understands that, once published, other parties may use and/or reproduce such images and recordings with or without Sourcepass’ consent. Contractor, on behalf of itself and all its employees, agents and assigns, hereby releases Sourcepass, its affiliated companies, as well as all directors, officers, agents, employees, customers, contractors, consultants, and advertising agencies of Sourcepass and its affiliated companies for all claims of any kind related to the creation, reproduction, use or publication of such images and voice recordings.
(f) Each and every person that contractor supplies, either directly or indirectly, to perform services of any kind for Sourcepass consents to the use of their likeness by Sourcepass and releases the parties listed in sub-paragraph (f) of this section.
This Paragraph shall survive the cancellation, expiration or termination of this Agreement.
10. Termination.
(a) Termination; Suspension. Either Party may terminate the Agreement for cause: (i) if the other Party is in material breach of the Agreement and has failed to cure such breach within thirty (30) days after written notice thereof, or (ii) upon the other Party’s liquidation or dissolution, disposal of substantially all assets, failure to continue its business in the ordinary course, assignment for the benefit of creditors, or becoming the subject of a voluntary or involuntary bankruptcy or similar proceeding. Sourcepass may suspend a Statement of Work at any time with or without prior notice – depending on the nature of the breach and the actual/potential harm to Sourcepass and Sourcepass clients, vendors, partners, etc., – in Sourcepass’ sole discretion. Following Sourcepass’ determination that the issue which gave rise to the suspension has been resolved to Sourcepass’ reasonable satisfaction, Contractor may resume work. Sourcepass is not obligated to suspend prior to termination in Sourcepass’ sole discretion, if due to the nature of the breach termination may be warranted.
(b) Effect of Termination and Survival. Upon termination of a Statement of Work and/or this Agreement, and without limiting any of Sourcepass’ other remedies hereunder, except in the case of termination owing to Sourcepass’ uncured breach, Contractor remains liable for all damages and any other obligations accrued and owed by Contractor under this Agreement and the applicable Statement of Work, and except as expressly set forth herein, all of Contractor’s rights and licenses under the Agreement and the applicable Statement of Work will immediately terminate and Contractor shall cease performing work. All amounts accrued or owed to Sourcepass in connection with this Agreement, and any other provisions which by their nature would reasonably survive, shall survive any termination of the Agreement.
11. Indemnification.
(a) Contractor hereby agrees to indemnify, hold harmless and defend Sourcepass and any partner, principal, employee or agent thereof (each of the foregoing being hereinafter referred to individually as an “Indemnified Party”) against all claims, liabilities, losses, expenses (including attorney’s fees and legal expenses related to such defense), fines, penalties, taxes or damages (collectively “Liabilities”) asserted by any third party where such Liabilities arise out of or result from (1) the negligence, gross negligence or willful misconduct of Contractor or subcontractor of Contractor; or (2) the representations or warranties made by Contractor hereunder, or their breach; or (3) the violation by Contractor of any third party’s trade secrets, proprietary information, trademark, copyright, or patent rights in connection with the performance by Contractor of the Services hereunder. Contractor’s obligation to indemnify and defend any Indemnified Party will survive the cancellation, expiration or termination of this Agreement by either party for any reason. Sourcepass shall promptly notify Contractor of any third-party claim and Contractor shall, at Sourcepass’ option, conduct the defense in any such third-party action arising as described herein at Contractor’s sole expense and Sourcepass shall cooperate with such defense.
(b) Sourcepass shall be responsible for the accuracy, completeness and propriety of information concerning its organization, products, and services that it furnishes to its’ customers. Accordingly, Sourcepass shall indemnify and hold Contractor harmless from and against any Liabilities that may be incurred by Contractor as the result of any claim, suit or proceeding made or brought against Contractor by any third party, including any governmental agency or industry self-regulatory body, which arises out of or in connection with the services provided by Sourcepass.
(c) The indemnified Party shall notify indemnitor promptly after the indemnified Party learns of the existence of an indemnifiable claim hereunder; provided, however, that failure to give such notice shall only affect the rights of the indemnified Party to the extent that indemnitor is prejudiced. The indemnified Party shall not admit any liability whatsoever. The indemnitor shall be entitled to take sole control of the defense and investigation of the indemnifiable claim at its own expense, by providing prompt written notice to the indemnified Party. The indemnified Party shall cooperate in all reasonable respects with the indemnitor and its attorneys in the defense of the claim (including by making available books, records, and personnel), and may reasonably participate at its own expense, through its attorneys or otherwise, provided that such participation does not interfere with the indemnitor’s defense. All settlements of indemnifiable claims under this Section shall: (i) be entered into only with the indemnified Party’s consent; and (ii) include an appropriate confidentiality agreement prohibiting disclosure of the terms of such settlement.
12. Limitation of Liability.
A. Exclusions. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR SOURCEPASS’S SUPPLIERS, LICENSORS, PARENT, SUBSIDIARY, AFFILIATE, SUBCONTRACTORS OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE UNDER ANY CONTRACT, TORT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT FOR: (I) ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, LOST PROFITS, GOODWILL, REVENUE, INCOME OR BUSINESS, DATA LOSS, INTERRUPTION OF BUSINESS, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, RIGHTS, OR SERVICES (HOWEVER ARISING AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
B. Direct Damages; Limitations.
a. EITHER PARTY’SAGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS PAID OR ARE PAYABLE TO SOURCEPASS UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM SUBJECT TO THIS SECTION. THE PARTIES ACKNOWLEDGE AND ACCEPT THE REASONABLENESS OF THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET
FORTH IN THIS SECTION.
b. NOTWITHSTANDING THE PROVISIONS IN THIS SECTION, NOTHING IN THIS AGREEMENT SHALL LIMIT FINANCIAL LIABILITY IN RESPECT OF THE SOURCEPASS’ PAYMENT OBLIGATIONS, CONTRACTOR’S INDEMNIFICATION, CONFIDENTIALITY AND DATA SECURITY OBLIGATIONS, THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, OR EITHER PARTY’S LIABILITY FOR WHICH LIABILITY IS NOT LIMITED UNDER APPLICABLE LAW.
13. Non-Exclusivity. During the term of this Agreement, Sourcepass may engage the services of any other individual or company that competes with Contractor or offers services similar to those offered by Contractor, and any such engagement shall not be considered a breach of this Agreement.
14. Confidential Information. All documents, software, reports, data, records, forms and other materials developed by Contractor for Sourcepass or its customers or obtained by Contractor in the course of performing any Services (including, but not limited to, customer records, data and information (and Sourcepass’ customer list furnished to the Contractor)) are the proprietary, confidential and trade secret information of Sourcepass. The Contractor will deliver to Sourcepass all such materials and all copies thereof (and all other property obtained from or through Sourcepass) when Sourcepass requests the same, and immediately upon termination of this Agreement. The Contractor shall not use or disclose to any person, firm or entity any proprietary, confidential or trade secret information of Sourcepass or its customers without Sourcepass’ express, prior written consent. These Paragraphs shall survive the cancellation, expiration or termination of this Agreement.
(a) Company Information. Contractor agrees at all times during the term of this Agreement and thereafter for a period of three (3) years following any termination, to hold in strictest confidence, and not to use, except for the benefit of Sourcepass, or to disclose to any person, firm, corporation or other entity without written authorization of an officer of Sourcepass, any Confidential Information of Sourcepass which Contractor obtains or creates. Contractor further agrees not to make copies of such Confidential Information except as authorized by Sourcepass. Contractor understands that “Confidential Information” means any Sourcepass proprietary and non-public information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, suppliers, customer lists and customers (including, but not limited to, customers of Sourcepass on whom Contractor called or with whom Contractor became acquainted while performing the Services under this Agreement), prices and costs, markets, software, developments, inventions, laboratory notebooks, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, licenses, finances, budgets or other business information disclosed to Contractor by Sourcepass either directly or indirectly in writing, orally or by drawings or observation of parts or equipment or created by Contractor during the period of the Agreement, whether or not during working hours. Contractor understands that Confidential Information includes, but is not limited to, information pertaining to any aspect of Sourcepass’ business which is either information not known by actual or potential competitors of Sourcepass or is proprietary information of Sourcepass or its customers or suppliers, whether of a technical nature or otherwise. Contractor further understands that Confidential Information does not include any of the foregoing items, which can be demonstrably shown, has become publicly and widely known and made generally available through no wrongful act of Contractor or of others who were under confidentiality obligations as to the information involved.
(b) Former Associations’ Information. Contractor represents that Contractor’s performance of all terms of this Agreement as a Contractor of Sourcepass have not breached and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by Contractor in confidence or trust prior or subsequent to the commencement of Contractor’s relationship with Sourcepass, and Contractor will not disclose to Sourcepass, or induce Sourcepass to use, any inventions, confidential or proprietary information or material belonging to any other party.
(c) Third Party Information. Contractor recognizes that Sourcepass has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on Sourcepass’ part to maintain the confidentiality of such information and to use it only for certain limited purposes. Contractor agrees to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out work for Sourcepass.
15. Independent Contractor. Contractor represents and warrants that it is an independent contractor and that it is not serving as an employee of Sourcepass under this Agreement. Contractor shall be responsible for all taxes and other expenses attributable to the rendition of Services hereunder to Sourcepass, and Contractor shall indemnify, hold harmless and defend Sourcepass from any and all claims, liabilities; damages, taxes, fines or penalties sought or recovered by any governmental entity, including but not limited to the Internal Revenue Service or any state taxing authority, arising out of Contractor’s alleged failure to pay federal, state or local taxes during the term of this Agreement. Nothing in this Agreement shall be deemed to constitute a partnership or joint venture between Sourcepass and Contractor, nor shall anything in this Agreement be deemed to constitute Contractor or Sourcepass the agent of the other. Neither Contractor nor Sourcepass shall be or become liable or bound by any representation, act or omission whatsoever of the other.
16. Independence. All representatives of Sourcepass are required to act in a responsible and respectable manner and to remain free of influences that may result in the loss of objectivity regarding business conducted with Sourcepass customers or with Sourcepass itself. Contractor must disclose and avoid any interests or activities involving another organization or individual that may result in a conflict of interest between Sourcepass and that organization or individual. Capitalizing on opportunities for personal gain or compensation outside of that provided by Sourcepass for the performance of services for Sourcepass is strictly prohibited.
17. Non-Solicitation of Customers: During the term of this Agreement and for one year after its termination, expiration or cancellation, Contractor shall not directly or indirectly provide or offer to provide services, other than through Sourcepass, to any customer of Sourcepass, and shall not induce any Sourcepass customer to reduce or terminate its relationship with Sourcepass.
18. Non-Solicitation of Employees: During the term of this Agreement and for one year thereafter, Contractor shall not directly or indirectly recruit, hire or employ any Sourcepass employee. If Contractor, either on its own account or for any other person, firm, partnership, corporation, or other entity, directly or indirectly recruits, hires or employs any Sourcepass employee(s), which shall include all employees of Sourcepass at any time during the term of this Agreement, and without the prior written consent of Sourcepass, then, in such case, Contractor shall pay Sourcepass, within fifteen (15) days of such recruitment, hiring or employment, as a placement fee, an amount equal to the total scheduled annual compensation by Sourcepass to such employee for the forthcoming twelve (12) months as compensation to Sourcepass for the internal an external investment in recruitment, training and certifications (if any).
19. Gifts: Contractor agrees not to solicit gifts from prospective or current customers, associates, or any other individual or business. Any gifts received shall be of nominal value. Nominal value is considered to be anything below $50.00.
20. Other Solicitation: At no time will Contractor solicit other employees, customers or agents of Sourcepass for political contributions or coerce others into contributing to any organization. Conduct must not give the perception that benefits to Sourcepass or connections are sought or desired. Additionally, offers of directorship to any outside organization that has or desires a business relationship with Sourcepass, or to any institution within the financial industry, must be reported to Sourcepass prior to acceptance.
21. Non-Assignability. Contractor shall not assign, transfer, or subcontract this Agreement or any of its obligations hereunder without Sourcepass’ express, prior written consent.
22. Severability. In the event that any term or provision of this Agreement shall be held to be invalid, void or unenforceable, then the remainder of this Agreement shall not be affected, impaired or invalidated, and each such term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware.
23. Integration. This Agreement constitutes the entire agreement of the parties hereto and supersedes all prior and contemporaneous representations, proposals, discussions, and communications, whether oral or in writing. This Agreement may be modified only in writing and shall be enforceable in accordance with its terms when signed by each of the parties hereto.
24. Data Security. Contractor understands and acknowledges that during the performance of the Services it may handle certain content or other information provided, transmitted, or displayed via the Sourcepass services or in performance of its’ duties under this Agreement and applicable Statement of Work(s) by Sourcepass’ customer(s), affiliates and end users of Sourcepass services (“Customer Data”). Notwithstanding anything to the contrary in this Agreement, Customer Data will be treated as Sourcepass’ Confidential Information. Contractor agrees to safeguard the security of all data it handles, stores, processes, or transmits in connection with this Agreement and the applicable Statement of Work(s), and will comply with all applicable laws, rules and regulations in accordance with applicable law. If Contractor discovers or is notified of a breach of security relating to any such data, Contractor shall notify Sourcepass within the period of time ascribed by applicable law but in no event less than seventy-two (72) hours following confirmation of the breach (a) notify Sourcepass of such breach; and (b) Contractor shall: (i) mitigate the effects of the breach; and (ii) institute safeguards that are designed to prevent or attempt to prevent the recurrence of such breach.
(a) Data Protection. Contractor shall comply with all applicable data protection and privacy laws and regulations when handling any and all Sourcepass or Sourcepass’ customers data, including applicable U.S.-E.U. Safe Harbor Framework principles developed by the Department of Commerce in coordination with the European Commission if and as applicable.
(b) Background Checks. Contractor shall ensure that all Personnel pass a background check to be administered by or on behalf of Contractor confirming the Personnel’s reliability and suitability for access to sensitive, confidential and proprietary information of third parties, including, to the fullest extent permitted by applicable law, a global sanctions check, confirmation of the individual’s education and employment history and a criminal history check.
(c) No Modification; Return of Data. Contractor shall not (i) modify any data that it receives or has access to under this Agreement and the applicable Statement of Work(s), (ii) disclose any data except as compelled by law or as expressly permitted in this Agreement, or (iii) access or use any data except as necessary to provide the Services as contemplated under the Agreement, prevent or address service or technical problems, or at Sourcepass’ request in connection with customer support matters. Additionally, Contractor shall provide prompt notification to Sourcepass or to third parties if designated by Sourcepass, including customers of Sourcepass, and reasonable cooperation, in the event of any unauthorized access to or disclosure of Sourcepass Confidential Information of which it becomes aware. Upon termination of this Agreement, or at the request of Sourcepass at any time during or after this Agreement, Contractor will deliver to Sourcepass or destroy and certify destruction (at Sourcepass’ election) all Sourcepass Confidential Information.
(d) Right to Audit Security Procedures. Following any notice from Sourcepass to Contractor of an actual or reasonably suspected unauthorized disclosure of data, Contractor shall grant permission to Sourcepass or Sourcepass’ customer to conduct, with reasonable prior written notice, under reasonable time, place and manner conditions, pursuant to appropriate confidentiality and technical restrictions, and at its own expense, an audit of Contractor’s systems, policies and procedures relevant to the security and integrity of data.
Additionally, upon Sourcepass’ reasonable belief that Contractor is not in compliance with standard security policies and procedures regarding data, or if such audit is required by Sourcepass or Sourcepass’ customer’s governmental regulators, Sourcepass may conduct, either itself or through a third-party independent contractor selected by Sourcepass at Sourcepass’ expense, an on-site audit and review of Contractor’s architecture, systems and procedures used in connection with the Services. Such audit and review shall be conducted up to one time per year, with one week’s advance notice. Upon Contractor’s request, after conducting an audit, Sourcepass shall notify Contractor of the manner in which Contractor does not comply with any of the security, confidentiality or privacy obligations herein, if applicable. Upon such notice, Contractor shall use commercially reasonable efforts to make any necessary changes to ensure compliance with such obligations. Any audits described in this Section shall be conducted during reasonable times and upon reasonable advance notice to Contractor and shall be of reasonable duration and shall not unreasonably interfere with Contractor’s day-to-day operations. In the event that Sourcepass conducts an audit through a third-party independent contractor, such independent contractor shall be required to enter into a non-disclosure agreement containing confidentiality provisions substantially similar to those set forth in the Agreement to protect Contractor’s proprietary information.
25. Insurance. Contractor shall maintain during the term of this Agreement, at its own expense, insurance coverage that is customary for comparably situated companies for the business being conducted under this Agreement, with each insurance coverage to be adequate against all liabilities, claims and risks against which it is customary for comparably situated companies to insure. This insurance shall include, at a minimum, Commercial General Liability or Public Liability insurance, Workers’ Compensation and Unemployment Insurance coverages as required by any state and federal laws to which Contractor is subject, Employer’s Liability Insurance, Professional Liability or Errors and Omissions insurance that covers the subject matter of this Agreement, Cyber Liability insurance (including, without limitation, coverage to address data loss, data security breaches, hacking and privacy law violations), and excess or umbrella liability in excess of the underlying coverage required above. All of the insurance policies described herein will not be canceled, materially reduced or renewal refused until at least thirty (30) calendar days written notice has been given to the other party. Contractor shall add Sourcepass as an additional insured on Contractor’s Commercial General Liability policy with limits of $1,000,000 per occurrence and $2,000,000 in the aggregate, and will furnish to Sourcepass certificates evidencing the foregoing insurance obligations within fifteen days after execution of this Agreement. Contractor will also provide proof of insurance to a customer of Sourcepass upon request, and if and as required by a customer, will add such customer as an additional insured to Contractor’s Commercial General Liability policy as reasonably required by a Customer.
26. Authority and Execution. Each Party represents that (i) it has full authority to enter into and perform under this Agreement; (ii) the person accepting the Statement of Work(s) and any other applicable documents on its behalf is properly authorized; and (iii) it has read the Agreement, understands it, and agrees to be bound by all of its terms, conditions, and provisions. This Agreement shall become effective upon the Effective Date. Electronic signing of Statements of Work and any other applicable documents, and the incorporation by reference of this Agreement into all applicable documents shall be deemed valid, binding and enforceable by and against both Parties.
27. Basis of Bargain; Failure of Essential Purpose. The Parties acknowledge and agree that the limitations and exclusions of liability set forth in this Agreement are an essential basis of the bargain between the parties and are material terms of this Agreement, and such terms will survive and apply even if found to have failed their essential purpose, and Contractor hereby waives its right to contest the enforceability of any provision of this Agreement by reason of such failure.
28. Notices. Sourcepass shall send formal legal notices hereunder via email to the email address Contractor provides on the Statement of Work. It is Contractor’s responsibility to keep its email address current, and Contractor will be deemed to have received any email sent to the last known email address Sourcepass has on record.
Contractor shall send formal legal notices hereunder via email to legal@sourcepass.com.
The addresses to which notices may be given by either Party may be changed upon written notice given to the other Party pursuant to this Section.
29. Governing Law and Venue. The laws of the State of Delaware will govern this Agreement, without reference to its principles of conflicts of laws, and each Party irrevocably consents to the jurisdiction of such state. Because this agreement is a transaction in interstate commerce, the Federal Arbitration Act (“FAA”), and not state arbitration law, shall govern the interpretation and enforcement of the arbitration provision below.
30. Arbitration and Dispute Resolution.
(a) Management Resolution. In the event either Party has a dispute or claim against the other Party, the disputing Party shall provide written notice to the other Party per Section 28 (Notices). The Parties agree to escalate disputes (other than invoice disputes) to their respective executive management, who will use commercially reasonable efforts to resolve the dispute by consulting with each other in good faith to reach an equitable resolution satisfactory to both parties within thirty (30) days of the receipt of notice. Neither Party shall pursue or commence proceedings regarding the dispute in any court, administrative arbitral, or other adjudicative body prior to engaging in such consultations and negotiations.
(b) Binding Arbitration. If negotiations fail to resolve the dispute within thirty (30) days, all disputed claims (except for claims relating to Intellectual Property Rights, indemnity, or confidentiality obligations, fraudulent or unauthorized use, theft, or piracy of service, or matters relating to injunctions or other equitable relief) must be resolved by binding arbitration before a single arbitrator, in the English language. This agreement to arbitrate is intended to be given the broadest possible meaning under applicable law. The initiation of an arbitration dispute shall not otherwise prevent either Party from terminating this Agreement.
(c) Location and Procedure. A Party who intends to seek arbitration must first send to the other Party a written notice of dispute per Section 28 (Notices), which must describe the nature and basis of the dispute and set forth the specific relief sought. The arbitration location will be determined by Sourcepass unless the Parties mutually agree upon a location. The amount of any settlement offer made by either Party shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which a Party is entitled. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement. The prevailing Party in any action or proceeding to enforce this Agreement shall be entitled to recover its reasonable attorneys’ fees and costs.
(d) Jury Trial Waiver. Subject to applicable law, each Party waives its right to a trial by jury for all claims hereunder. The arbitrator may award relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim. The arbitrator may not award special, indirect, punitive, incidental or consequential damages.
(e) Equitable Relief. Notwithstanding the foregoing, each Party shall be entitled to seek equitable relief to enforce its Intellectual Property Rights, and for claims relating to indemnity, or confidentiality obligations, fraudulent or unauthorized use, theft, or piracy of service, or matters relating to injunctions or other equitable relief in any court of competent jurisdiction at any time.
31. Force Majeure. Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of a Party. Such acts or circumstances which would relieve a Party of performing under this Agreement are acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemics, pandemics, sabotage, denial of service attacks, or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 60 days and impacts a Party from performing hereunder, the impacted Party shall give notice in writing to the other Party to terminate this Agreement or reduce an impacted Service. Any such termination or reduction shall not relieve Sourcepass from paying all amounts due up to the date of the force majeure event.
