PROFESSIONAL SERVICES AGREEMENT
Term and Conditions
- Definitions: Capitalized terms used herein shall have the meanings ascribed to them in this Section and elsewhere in these Terms and Conditions.
“Agreement” means collectively, these Terms and Conditions (including all exhibits referenced herein) and the SOW.
“Customer” means the customer who has executed a SOW referencing these Terms and Conditions for the purchase of Services and Deliverable to be provided by ISG to Customer.
“Deliverables” means the deliverables to be provided by ISG to Customer as identified in a SOW.
“Equipment” means the equipment identified on a SOW.
“ISG” means ISG Technologies, LLC.
“Parties” means Customer and ISG collectively.
“Party” means each of Customer and ISG individually.
“Services” means the services to be provided by ISG to Customer as identified in a SOW.
“Statement of Work” or “SOW” means the statement of work for the provisions of Services and Deliverables referencing these Terms and Conditions and executed by ISG and Customer that, among other details, identifies: (i) the Services and Deliverables to be provided by ISG to Customer; (ii) the prices to be paid therefore; (iii) each Party’s specific responsibilities and obligations with respect thereto, (iv) any delivery and/or performance schedules, and (v) any other terms the Parties deem necessary or appropriate to be included in the SOW.
- STATEMENTS OF WORK. The SOW shall be signed by an authorized representative of each Party and shall incorporate by reference all of these Terms and Conditions, which shall be applicable to all Services and/or Deliverables under the SOW, and the SOW shall constitute an integral part of the Agreement. In the event of a conflict of terms between these Terms and Conditions and any terms contained in the SOW, the terms and conditions set forth in these Terms and Conditions shall govern.
- PAYMENT TERMS.
(a) Fees. In consideration for the Services and/or Deliverables to be provided by ISG under each SOW, Customer shall pay ISG the fees and/or other consideration for the provision of Services and/or Deliverables set forth in the SOW (“Fees”). Unless otherwise agreed by the Parties in writing, the currency to be used for payment of the Fees is United States Dollars.
(b) Expenses. ISG, at its own expense, shall supply all personnel, equipment, materials, supplies, facilities, rights, and other resources necessary or appropriate for the provision of the Services and/or Deliverables. Customer shall reimburse ISG for any other expenses incurred in connection with providing the Services and/or Deliverables, including all actual reasonable travel expenses and other reasonable out-of-pocket expenses incurred by ISG employees in connection with performing under the Agreement (“Expenses”). To the extent Customer advances payment to ISG for any Expenses to be incurred by ISG, upon payment of such Expenses by Customer to ISG, ISG shall be fully liable for the payment of all such Expenses.
(c) Invoice Terms. ISG shall issue invoices to Customer on a monthly basis in arrears. Unless otherwise agreed in writing between the Parties, Customer will pay all undisputed invoices within thirty (30) calendar days of Customer’s receipt of such invoice. Customer must notify ISG of any invoice disputes within fifteen (15) days of receipt. ISG reserves the right to suspend provision of the Services if Customer’s account is more than thirty (30) days past due, at the sole discretion of ISG, and a service charge may be added to unpaid invoices from the due date thereof at a rate equal to the greater of: 1 ½ % per month (18% per year) or the maximum rate permitted by applicable law. All checks or drafts dishonored for any reason shall be assessed a $25.00 service charge.
(d) Taxes. In addition to the Fees, Customer shall be responsible for all applicable taxes, if any, due in connection with ISG’s provision of the Services and/or Deliverables to Customer, including but not limited to any sales, use, goods and services, value added, or other taxes or comparable levies, and other government charges such as duties, tariffs and surcharges; provided, that each Party shall be responsible for its own income taxes or taxes based on gross revenues, including, but not limited to, business and occupation taxes. If any governmental entity imposes a withholding tax on amounts payable to ISG, the amounts payable to ISG shall be grossed-up so that ISG actually receives the invoiced amounts.
- TERM AND TERMINATION.
(a) Term. The term of the Agreement shall be as set forth in the SOW (“Term”).
(b) Termination of Agreement. In addition to any other remedies it may have, the Agreement may be terminated: (i) immediately by either Party if the other Party breaches the Agreement and such breach continues for thirty (30) calendar days after the breaching or failing Party receives written notice of such breach from the other Party (ten (10) days in the case of non-payment). Either Party shall have the right to terminate the Agreement, effective upon written notice of termination to the other Party in the event the other Party: (i) commits an act of bankruptcy, becomes subject to any proceeding pursuant to the Bankruptcy Code, becomes insolvent, or has any substantial part of its assets become subject to levy, seizure, assignment, application or sale for or by any creditor or governmental agency, or (ii) ceases doing business in the ordinary course; or (iv) as provided in Section 15(g) following a Force Majeure Event.
(c) Effect of Termination. Upon termination of the Agreement, Customer shall be responsible for payment for all Services performed and/or Deliverables provided by ISG and not rejected by Customer in accordance with Section 5 of these Terms and Conditions, through the effective date of termination, less any money paid in advance for Services and/or Deliverables that are not performed or provided or are so rejected by Customer, and (ii) ISG shall be responsible for delivery of any work in progress for which payment is made under the SOW through such effective date of termination.
(d) Survival. The rights and obligations of the Parties under the Agreement that by their nature would continue beyond the expiration or termination of the Agreement shall survive such termination or expiration.
- ACCEPTANCE. Unless otherwise specifically provided in the SOW, all Services shall be deemed to be accepted upon performance and all Deliverables shall be deemed to be accepted upon delivery.
(a) Subject to paragraph (b) of this Section 6 and unless otherwise set forth in the SOW, the following shall apply to all Deliverables for which Customer has paid ISG in full the Fees due for such Deliverable according to the terms of the Agreement: (i) such Deliverables (excluding ISG IP) shall be the sole and exclusive property of Customer and Customer shall exclusively retain all ownership and intellectual property rights therein; and (ii) other than with respect to ISG IP, if ISG is deemed to retain any intellectual property rights in any such Deliverables, or if any such Deliverable is not deemed a “work for hire” by operation of law, ISG hereby irrevocably assigns to Customer and Customer hereby accepts all rights, title and interests in any intellectual property rights in such Deliverable without further consideration.
(b) It is understood that each Party shall be free to use its general knowledge, skills and experience outside the scope of the Agreement. ISG shall retain the sole and exclusive ownership of all intellectual property rights in ISG materials, ideas, inventions, tools, concepts, know-how, techniques, methods and processes in existence prior to the effective date of the Agreement or developed, conceived, obtained, licensed or acquired independently of the Agreement and in ideas, inventions, tools, concepts, know-how, techniques, methods and processes developed, conceived, obtained, licensed or acquired by ISG in the course of performance under the Agreement (“ISG IP“). ISG hereby grants to Customer, and Customer hereby accepts, a non-exclusive, worldwide, transferable, perpetual, fully-paid license to use, copy, modify, distribute and sublicense all ISG IP provided by ISG as part of the Services and/or Deliverables under the SOW, solely as integrated into or used with the applicable Services and/or Deliverables.
(c) Notwithstanding the foregoing paragraphs (a) and (b) of this Section 6 or any other provision of the Agreement or the SOW, Customer shall not have or obtain any rights of any kind (including, without limitation, any ownership rights, any license or any right to use, copy or distribute) in or to any pre-packaged solutions, platforms or products identified in the SOW as “Designated ISG Intellectual Property,” except as set forth in one or more separate license agreements executed by the Parties hereto.
(d) Except as otherwise provided in paragraph (b) of this Section 6, nothing in the Agreement shall be construed as a grant by either Party to the other Party of any license or other right under any patent, trademark or copyright.
(a) ISG and Customer each represents and warrants that it has the authority to execute and deliver the Agreement, and that its execution and delivery of the Agreement will not violate any applicable law or government regulation or result in a breach of any other agreement to which it is bound.
(b) ISG warrants that the Services and/or Deliverables it provides to Customer will conform in all material respects to the specifications set forth in the SOW, and that any Deliverables it provides to Customer will be free from material defects in material or workmanship, at the time of delivery to Customer and for a period of thirty (30) days thereafter (“Warranty Period”). Customer must report a breach of the foregoing warranty to ISG within the Warranty Period in order to receive warranty remedies. For any breach of the warranty contained in this Section, Customer’s sole and exclusive remedy, and ISG’s entire liability and obligation shall be, at ISG’s election, to re-perform the Services or correct the deficiency in the Deliverables, as applicable. If ISG is unable to satisfactorily re-perform the Services or correct the deficiency in the Deliverables, as applicable, after using commercially reasonable efforts, ISG will refund the Fees paid for previous thirty (30) days for such Services or Deliverables (only those fees related to the deficient Service or Deliverables), and ISG will thereafter be relieved of all liability and obligation with respect to such breach of warranty.
(c) EXCEPT FOR THE FOREGOING WARRANTIES IN THIS SECTION 7, THE SERVICES AND/OR DELIVERABLES WILL BE PROVIDED “AS IS” AND “WITH ALL FAULTS”. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 7, ISG MAKES NO REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, REGARDING THE SERVICES AND DELIVERABLES OR ANY OTHER MATTER PERTAINING TO THE AGREEMENT, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED BY ISG TO THE FULLEST EXTENT PERMITTED BY LAW.
- THIRD PARTY PRODUCTS. Notwithstanding any other provision of the Agreement, Sections 6 and 7(b) above shall not apply to any services or deliverables performed or provided by a third party in any capacity other than as a subcontractor of ISG.
(a) “Confidential Information” means information, technical data, or know how of either Party (the “Discloser”), including by way of illustration that which relates to research, product plans, products, services, customers, markets, software, developments, feedback, test results, inventions, processes whether of business or otherwise, designs, drawings, engineering, hardware configuration information, marketing or finances, and all business information that is not generally known to, and cannot be readily ascertained by others, and which has actual or potential economic value, which is designated in writing to be confidential or proprietary, or if given orally, is designated by Discloser either before, at the time of or within ten (10) days of disclosure as being disclosed as confidential or proprietary, or is reasonably understood as and usually held to be, Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is in the possession of the other Party (the “Recipient”) at the time of disclosure as shown by the Recipient’s files and records immediately prior to the time of disclosure; (ii) prior or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the Recipient in breach of this Section 9; (iii) is lawfully obtained from a third party without any breach of a confidentiality obligation; (iv) is approved for release by the Discloser in writing; or (v) is shown by written record to be developed independently by the Recipient.
(b) The Recipient agrees not to use the Confidential Information for its own use or for any purpose except as necessary to perform its obligations under the Agreement. Recipient will not disclose any Confidential Information to any third Parties except its affiliates, directors, officers, employees, consultants and agents who have a need know the Confidential Information in order to facilitate Recipient’s performance contemplated by the Agreement. Recipient shall ensure that those affiliates, directors, officers, employees, consultants and agents to whom Confidential Information is disclosed or who have access to Confidential Information are bound by nondisclosure terms in content substantially similar to this Section 9. Recipient will be responsible for breaches of this Section 9 by any such person. Recipient agrees that it will take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have any such Confidential Information, which measures shall include the same degree of care the Recipient utilizes to protect its own Confidential Information of a similar nature, but in no event less than a reasonable degree of care. Recipient agrees to notify Discloser in writing of any misuse or misappropriation of such Confidential Information which may come to its attention; provided, however, that nothing herein shall prevent Recipient from disclosing the Confidential Information to the extent necessary to its auditors or legal advisors.
(c) In the event that Recipient or any of its affiliates, directors, officers, employees, consultants or agents are requested or required by legal process to disclose any of Discloser’s Confidential Information, Recipient shall give Discloser prompt written notice so that Discloser may seek a protective order or other appropriate relief. In the event that such protective order is not obtained, Recipient shall disclose only that portion of the Confidential Information that its counsel advises that it is legally required to disclose.
(d) Any materials or documents embodying Confidential Information which have been furnished to the Recipient will be promptly returned, accompanied by all copies of such documentation upon expiration or termination of the Agreement. Notwithstanding the return of Confidential Information, both Parties will continue to be bound by the obligations of confidentiality hereunder.
(e) Each Party agrees that its obligations under this Section 9 are necessary and reasonable in order to protect the other Party and the other Party’s business, and expressly agrees that monetary damages may be inadequate to compensate the other Party for any breach by either Party of any covenants and agreements set forth in this Section 9. Accordingly, each Party agrees and acknowledges that any such violation or threatened violation may cause irreparable injury to the other Party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the other Party shall be entitled to seek injunctive relief against the threatened breach of this Section 9 or the continuation of any such breach, without the necessity of proving actual damages.
- LIMITATION OF LIABILITY. OTHER THAN FOR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, AND EACH PARTY HEREBY RELEASES THE OTHER PARTY AND ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES, FROM ANY LIABILITY, WHETHER IN CONTRACT OR TORT, BY STATUTE OR UNDER ANY OTHER THEORY OF RECOVERY, INCLUDING NEGLIGENCE, OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF PROFITS, LOST DATA OR LOSS OF USE, WHETHER FORSEEABLE OR NOT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, THE DELIVERABLES OR THE PERFORMANCE OR NON-PERFORMANCE UNDER THE AGREEMENT. FURTHER, OTHER THAN FOR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER AND CLAIMS FOR BODILY INJURY (INCLUDING DEATH) OR TANGIBLE PERSONAL OR REAL PROPERTY DAMAGE, NEITHER PARTY’S LIABILITY UNDER THE AGREEMENT SHALL EXCEED THE AMOUNT PAID BY CUSTOMER TO ISG UNDER THE AGREEMENT FOR THE SERVICES OR DELIVERABLES THAT IS THE SUBJECT OF THE CLAIM FOR DAMAGES. NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED IN THE AGREEMENT SHALL LIMIT EITHER PARTY’S LIABILITY FOR ANY CLAIM RESPECTING DAMAGES RESULTING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL OR INTENTIONAL MISCONDUCT. THIS PROVISION SHALL SURVIVE TERMINATION OF THE AGREEMENT. ANY ACTION BROUGHT BY EITHER PARTY MUST BE COMMENCED WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION ARISES.
- COVENANT NOT TO EMPLOY. During the Term of the Agreement and for a period of twelve (12) months thereafter, Customer shall not directly or indirectly employ or solicit for employment (other than through a general advertisement) any ISG employee or subcontractor who has either provided Services or Deliverables under the Agreement or had direct personal contact with Customer in connection with ISG’s performance under the Agreement.
- ISG shall provide the Services and/or Deliverables under the Agreement as an independent contractor, and nothing in the Agreement shall be construed to create a partnership, joint venture or agency relationship between the Parties. ISG shall have and maintain complete control over and be responsible for all of its employees, and its consultants and subcontractors, if any, who perform services in connection with ISG’s performance under the Agreement. None of the personnel of either Party shall be entitled to any benefits of any employee benefit plan that the other Party may have in effect, nor will any of the personnel of either Party be considered employees of ISG for purposes of any tax or contribution levied by any federal, state or local government.
- COMPLIANCE WITH LAW.
(a) Each Party will comply with all applicable current and future local, state, and federal laws, regulations and ordinances in performing its obligations under the Agreement.
(b) Neither Party will take any action in connection with the Agreement that would violate the U.S. Foreign Corrupt Practices Act, as amended (the “FCPA”), or that would cause it or the other Party to be in violation of the FCPA. Further, neither Party will export or transfer any Services or Deliverables directly or indirectly to any country that is subject to a U.S. trade embargo or is otherwise subject to U.S. international trade sanctions, or to any person who is listed by an agency of the U.S. government as a specially designated national, blocked, denied, or debarred person, or a person having similar status.
- GENERAL PROVISIONS.
(a) Governing Law and Jurisdiction. The Agreement shall be governed by and construed and enforced in accordance with the internal law of the State of Maryland, without regard to any choice-of-law provisions, and shall be binding upon the Parties in the United States and worldwide. Each Party agrees that the federal and state courts located in or for Baltimore County, Maryland shall have exclusive jurisdiction to adjudicate any dispute arising out of the Agreement.
(b) Dispute Resolution. In the event a controversy, claim or dispute (“Dispute”) arising out of or relating to the Agreement arises between the Parties, either Party may request by notice to the other Party that the Dispute be escalated to the Parties’ respective senior management personnel. Upon request, each Party’s respective senior management personnel will conference by telephone or in person with the other Party’s senior management personnel within a reasonable period of time not to exceed fifteen (15) calendar days of such notice to determine if the Dispute may be resolved. If such senior management personnel are unable to resolve the Dispute within thirty (30) calendar days of such meeting, either Party may resort to dispute resolution procedures allowable under the Agreement.
(c) Assignment. The Agreement may not be assigned, in whole or in part, by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed, except that either Party may assign the Agreement without consent of the other Party as part of a sale of all or substantially all of its assets. The Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
(d) Third Party Beneficiaries. The Agreement is for the benefit of Customer and ISG only and not for the benefit of any other Party.
(e) Records. ISG shall maintain records of all activities subject to payments pursuant to the Agreement for a period of three (3) years. ISG shall permit a reputable independent certified public accounting firm designated by Customer and approved by ISG to access and review, at a mutually agreed upon time during normal business hours and at Customer’s expense, the books, records and policies and procedures of ISG that relate to its performance under the Agreement for the purpose of determining whether such performance was and remains consistent with ISG’s obligations under the Agreement. Such audits shall be limited to one (1) in any consecutive twelve (12) consecutive month period.
(f) Entire Agreement. The Agreement is the entire agreement between the Parties relating to the subject matter hereof and supersedes any prior representations or agreements, oral or written, and all other communications. All modifications of, waivers of and amendments to the Agreement must be in writing and signed on behalf of each Party.
(g) Force Majeure. Neither Party shall be liable to the other for any acts of God, governmental orders or restrictions, terrorism, riot, fire, flood or other natural disaster (“Force Majeure Event”), that prevents a Party (the “Nonperforming Party”), in whole or in part, from: (i) performing its obligations under the Agreement; or (ii) satisfying any conditions to such Party’s obligations under the Agreement, where the unforeseen Force Majeure Event is beyond the reasonable control of and not the fault of the Nonperforming Party and the Nonperforming Party has been unable to avoid or overcome the Force Majeure Event by the exercise of due diligence. A Force Majeure Event excludes economic hardship, changes in market conditions or insufficiency of funds. The Party claiming to be affected by the Force Majeure Event shall provide immediate notice to the other Party setting forth the particulars of the Force Majeure Event. Upon cessation of the Force Majeure Event, the Nonperforming Party agrees promptly to perform or complete the performance of its obligations as set forth in the Agreement. In the event the delay exceeds thirty (30) calendar days, the Party that is not the Nonperforming Party shall have the right to immediately terminate the Agreement and recover any amounts paid in advance for the delayed Services and Deliverables.
(h) No Waiver. The Parties may not waive any provision of the Agreement in whole or in part, except pursuant to a writing executed by both Parties. The failure of either Party to enforce at any time any of the provisions of the Agreement will not be construed to be a continuing waiver of any provisions hereof, nor will the failure by either Party to strictly enforce any provision of the Agreement prejudice the right of that Party to take any action in the future to enforce any provisions hereof.
(i) Publicity. Customer hereby authorizes ISG to identify Customer as a client, and for that purpose to use Customer’s logo, in ISG’s promotional, advertising and marketing materials and on its website; provided that Customer may withdraw such authorization at any time by written notice to ISG.
(j) Notices. Notices permitted or required under the Agreement shall be deemed to have been given on the date actually received when personally delivered or when sent by electronically confirmed facsimile or email followed by written confirmation sent by mail as provided herein, or three (3) business days after mailing if mailed by registered or certified U.S. mail, return receipt requested. The notice address for each Party is on the SOW, and may be changed by giving notice as provided herein.
(k) Severability. If any provision of the Agreement is determined to be illegal, invalid or unenforceable by a competent court or tribunal, the validity and enforceability of the remaining provisions will not be affected and, in lieu of such illegal, invalid or unenforceable provision, there will be added as part of the Agreement one or more provisions as similar in terms and effect as may be legal, valid and enforceable under applicable law.
(l) Headings and Captions. The descriptive headings of the articles, sections and subsections of the Agreement are for convenience only and do not constitute a part of the Agreement.
(m) Interpretations. The Parties agree that the terms and conditions of the Agreement are a result of mutual negotiations. Therefore, the rule of construction that any ambiguity shall apply against the drafter is not applicable and will not apply to the Agreement. Any ambiguity shall be reasonably construed as to its fair meaning and not strictly for or against one Party regardless of who authored the ambiguous language.
(n) Subcontractors. ISG may from time to time in its discretion engage third parties to perform all or portions of the Services. ISG shall be liable for the actions or omissions of such Subcontractors in breach of the Agreement as if such actions or omissions were the actions or omissions of ISG.
(o) Insurance. ISG shall, at its own expense, obtain and maintain in full force and effect, with sound and reputable insurers and with no right of contribution by Customer, during the Term of the Agreement, the following coverage: (1) Worker’s Compensation, as required by the law of the state of hire; (2) Employer’s Liability with a minimum limit of $1 million of liability for each accident; (3) Commercial General Liability against all hazards including coverage for blanket contractual liability and products and completed operations with a minimum limit of liability for personal injury, including death, on an occurrence basis of $1 million and $5 million in aggregate. ISG shall provide Customer with evidence of coverage upon request.
(p) Counterparts. The Parties may execute the SOW in multiple counterparts, each of which constitutes an original, and all of which, collectively, constitute only one agreement. Delivery of an executed counterpart signature page by facsimile or PDF is as effective as executing and delivering the Agreement in the presence of the other Party, and any such facsimile or PDF shall be deemed an original and fully enforceable and admissible in any legal proceeding. The Agreement is effective upon delivery of one executed counterpart from each Party to the other Party. In proving the Agreement, a Party must produce or account only for the executed counterpart of the Party to be charged.