STANDARD TERMS AND CONDITIONS
These Standard Terms and Conditions are incorporated into, and made a part of, that certain Service Supplier Agreement (hereinafter “Agreement”) between *COMPANY NAME* (hereinafter “Company”), including subsidiaries, affiliates and Enterprise Members, as defined herein, and DMD Systems Recovery, Inc. (hereinafter “Contractor”). For the purposes of this Agreement, Enterprise Members shall include all affiliates, subsidiaries, and related companies that Company controls by ownership of forty-five percent (45%) or greater equity interest, or control of the day-to-day management, by management contract. Contractor and Company agree to the following Standard Terms and Conditions (hereinafter “Terms”):
1. Independent Contractor. This Agreement establishes an independent contractor relationship between Company and Contractor. All of the terms of this Agreement shall be interpreted in light of that relationship. The parties do not intend to create by this Agreement an employer/employee relationship between Company and Contractor, or any relationship of partnership, or joint venture, or agency, and nothing in this Agreement shall be construed to create that type of relationship between the parties.
2. Services to be Provided by Contractor. From time to time, Company and Contractor will enter into a Statement of Work (“SOW”), the terms of which are hereby incorporated into this Agreement, that sets forth the services to be provided by Contractor to Company (collectively, the “Services”), timetable for performance of services, payment of fees for Contractor’s Services, and other related information. Contractor agrees to use its best efforts to perform the Services in accordance with the Terms and Conditions of this Agreement. Contractor’s means and methods for performing its Services must comply with the Terms and Conditions of this Agreement (including, without limitation, any applicable SOW). However, Contractor shall have first right of refusal to perform services from all Company locations.
3. Term of Agreement. Contractor shall perform the Services during the time period set forth in any applicable SOW’s. The initial term of this Agreement shall commence on the Effective Date. This Agreement shall continue until terminated per the terms of Section 4. Of this agreement.
4. Termination. This Agreement may be sooner terminated by Contractor or Company upon thirty (30) days advance notice, upon mutual agreement from both parties. This Agreement may be terminated for cause by either party in the event of a breach of this Agreement by the other party, which is not cured within ninety (90) days of written demand from the non-breaching party. In the event Company terminates a SOW, Company shall pay Contractor for any services provided under the SOW through the effective date of termination. The effectiveness of, Sections 7-11 hereof, shall survive the termination or expiration of this Agreement. Upon termination or expiration of this Agreement, or any SOW, or at any prior time upon the request of Company, Contractor will promptly deliver to Company all memoranda, notes, records, drawings, manuals, disks, documents, media, equipment, papers, badges, access codes, or other information obtained by Contractor from Company.
a) Payment. Company will pay Contractor for the performance of Services in the amounts and in accordance with the schedule specified in the applicable SOW (the “Schedule”). Contractor will mail its invoices requesting payment to:
CITY, STATE, ZIP:
or such other address as Company shall designate from time to time, with a copy to such Representative as Company in writing may designate, at his/her designated address unless otherwise agreed in the SOW. Company will pay such invoice in full within thirty (30) days after receipt of Contractor’s invoice. In the event of a termination of this Agreement, all outstanding work under SOW will be completed within thirty (30) days, and payment remitted to Contractor within sixty (60) days, of the Notice of Termination. Any amounts not timely paid will bear interest at the rate of one and one-half percent (1.5%) interest per month until paid in full.
b) Tax Reporting. Contractor acknowledges that it is not a Company employee, but is an independent contractor and, as such, it is Contractor’s sole obligation to report as employment income all compensation received by Contractor from Company for its services.
c) Ineligibility for Employee Benefits; General Waiver and Release. Contractor understands and agrees that it is not eligible for any Company employee benefits, including, but not limited to, holiday, vacation or sick pay, social security, Medicare, unemployment or disability insurance, workman’s compensation, health and welfare benefits, profit sharing, 401(k) or any employee stock option or stock purchase plans.
6. Company Representative. Company Representative means the Company employee named in the applicable SOW, or such other person as Company may subsequently designate as such to Contractor in writing.
7. Assignment of Ownership Work Product.
a) Work Product. If, in the course of performing services for Company, Contractor shall create intellectual property rights as defined below (hereinafter, “Work Product”), such Work Product shall be the sole and exclusive property of Company, except that any pre-existing works created by Contractor and/or third parties that are outside of the Services, but are utilized in connection with such Services (the “Pre-Existing Works”) shall continue to be owned by Contractor or such other third parties, and Company shall have no claim thereto.
b) Assignment. Contractor agrees that all such Work Product shall be deemed to be works-made-for-hire within the meaning of the copyright laws of the United States and that Company shall own all rights, including all copyright rights in and to such Work Product. Contractor hereby assigns, transfers and conveys to Company all right, title, and interest in the Work Product, including, without limitation, all related worldwide patents, patent applications, copyrights, trademarks, trade secrets, rights of reproduction, and any and all other rights of whatever kind or nature. Contractor agrees to execute such further documents and to perform such further acts, at Company’s expense, as may be necessary to perfect the foregoing assignment, and to perfect the foregoing assignment and to protect Company’s rights in the Work Product. In the event Contractor fails or refuses to execute such documents, Contractor hereby appoints Company as Contractor’s attorney-in-fact (this appointment to be irrevocable, and a power, coupled with an interest) to act on Contractor’s behalf and to execute such documents.
c) Intellectual Property Rights. “Intellectual Property Rights” means, collectively, all worldwide intangible legal rights, whether or not filed for, perfected, registered or recorded, and whether now or hereafter existing, filed, issued or acquired, including: (i) patents, patent applications, and patent rights, including any and all continuations (including continued examination applications), continuations in part, divisionals, reissues, re-examinations, or extensions thereof; (ii) rights associated with works of authorship, including, but not limited to, copyrights, copyright applications and copyright registrations; (iii) rights relating to the protection of trade secrets and confidential information, including, but not limited to, rights in industrial property, customer, vendor and prospect lists and all associated information or databases and other confidential or proprietary information; and (iv) trademarks, service marks, logos, trade dress, trade names, service names, and industrial design rights.
8. Warranties; Indemnity.
a) Employees/Subcontractors of Contractor. Contractor represents and warrants that all Services rendered pursuant to this Agreement shall be performed by Contractor, its employees, and its designated subcontractors. Contractor agrees that its employees who perform services for Company shall be bound by the terms of this Agreement. Contractor shall notify Company in writing in advance of Contractor’s desire to retain any subcontractors to support the performance of the Services. Company reserves the right, in its sole discretion, to disapprove such retention. Contractor also agrees that any subcontractor it hires to perform the Services for Company, shall, prior to performance of any Services, agree in writing to be bound by the terms of this Agreement. Contractor agrees promptly upon written request to furnish copies of such agreements signed by subcontractors. In addition, Contractor shall expressly notify any such subcontractor in writing that such subcontractor is not permitted to further subcontract the provision of Services to any third party subcontractor without first: (i) notifying Contractor and Company of such planned subcontracting in writing; and (ii) obtaining BOTH Contractor’s and Company’s prior written approval to such subcontracting.
b) Performance Standard. Contractor represents and warrants that the Services, and all Work Product, and other services performed under this agreement, shall be performed in a thorough and workmanlike manner, in accordance with all applicable standards within Contractor’s industry.
c) General Indemnity. Contractor shall indemnify Company and hold Company harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees and expenses arising from the death or injury of any person or persons, including employees of Company, or from the damage or destruction of any physical property or properties, and attributable to, or resulting from, the performance of this Agreement by Contractor. Company shall indemnify Contractor and hold Contractor harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees and expenses arising from the death or injury of any person or persons, including employees of Contractor, or from the damage or destruction of any physical property or properties, and attributable to, or resulting from, the performance of this Agreement by Company.
d) Insurance. Contractor will, at Contractor’s expense, maintain insurance policies that cover Contractor’s activities under this Agreement, and the activities of Contractor’s employees, agents and representatives, including, but not limited to, workers’ compensation insurance, and comprehensive general liability errors and omissions liability, and media liability, with minimum limits of insurance of Three Million Dollars ($3,000,000) per claim, and Five Million Dollars ($5,000,000) annual aggregate. In addition, Contractor will Cyber Insurance covering the impact of a data breach, with coverage of Ten Million Dollars ($10,000,000) per claim. All of Contractor’s policies will be underwritten by insurers who maintain a minimum A.M. Bests rating of A-. Contractor will name Company as an additional insured on each such policy. Upon the written request of Company, Contractor shall provide Company with a certificate of insurance evidencing such coverages. In addition, Contractor will provide Company thirty (30) days advance written notice of any cancellation or reduction in coverage or limits.
e) Limitation of Liability. In no event will either party be liable to the other party for any special, incidental, indirect, punitive, or consequential damages, whether based on breach of contract, tort (including negligence) or otherwise, whether or not such party has been advised of the possibility of such damage. Contractor shall in no event be liable to Company for damages in an amount in excess of amounts paid to Contractor by Company under the applicable SOW. Any claim for damage, howsoever arising, that Company wishes to make to Contractor must be made in writing to Contractor within thirty (30) days of the occurrence of such damage, or it shall be conclusively deemed to have been waived and released.
9. Company Confidentiality.
Contractor acknowledges and agrees that the following constitute the confidential information of Company (collectively, the “Company Confidential Information”):
(i) all Work Product, other plans, specifications, designs, and other documents and materials created, pursuant to this Agreement;
(ii) any plans, specifications, designs, and other documents or materials related to the Services;
(iii) any information, work in progress, trade secrets, or other secret, sensitive or confidential material related to the business, technology, products, systems, practices, processes, customers or projects of Company that are first disclosed to, or become known by, Contractor during the Term, and which are not generally publicly known;
Contractor agrees (i) to hold such Company Confidential Information in strict confidence; (ii) not to disclose such Company Confidential Information to any third party, except as required under applicable law; (iii) to use such Company Confidential Information only as necessary to perform the Services under this Agreement; and (iv) upon termination of this Agreement, to return or destroy all tangible Company Confidential Information (including tangible media containing intangible Company Confidential Information) to Company.
10. Contractor Confidentiality.
(a) Company acknowledges and agrees that the following constitute the confidential information of Contractor (collectively, the Contractor Confidential Information”)
(i) all Work Product, other plans, specifications, designs, and other documents and materials created pursuant to this Agreement;
(ii) any SOW, specifications, advertisements, pricing, terminology, and other documents or materials related to the Services; and
(iii) any information, work in progress, trade secrets, or other secret, sensitive or confidential material related to the business, technology, products, systems, practices, processes, customers, or projects of Contractor that are disclosed to, or become known by, Company during the Term, and which are not generally, publicly known;
Company agrees (i) to hold such Contractor Confidential Information in strict confidence; (ii) not to disclose such Contractor Confidential Information to any third party, except as required under applicable law; (iii) to use such Contractor Confidential Information only as necessary to perform the Services under this Agreement; and (iv) upon termination of this Agreement, to return all tangible Contractor Confidential Information (including tangible media containing intangible Contractor Confidential Information) to Contractor.
11. Release to Environment. In performing Services under this Agreement, Contractor shall not discharge, release or emit, or cause to be discharged, released or emitted, any hazardous or non-hazardous substance into the environment, with the prior written approval of an authorized representative of Company. If any discharge, release or emission not so approved by Company occurs, Contractor shall inform Company immediately, shall promptly undertake all reasonable efforts to contain and cease such activity, and shall restore all property to its original condition.
12. Hazardous Materials. Whenever Contractor uses or stores flammable, explosive, or other hazardous materials or hazardous equipment or uses hazardous or unusual methods for its performance of the Services, Contractor shall exercise utmost care and shall carry on such activities under supervision of properly trained personnel and in accordance with all Company policies, programs and procedures related to hazardous materials. Contractor shall not take any remedial action with regard to hazardous materials used in the performance of the Services or enter into any settlement agreement, consent or decree or other compromise relating thereto without first notifying Company in writing of Contractor’s intention to do so and according Company ample opportunity to protect its interests. Whenever Contractor is aware of any of the following actions regarding hazardous materials that are instituted, completed, or threatened, Contractor shall immediately notify Company in writing of (i) any governmental or regulatory action; (ii) any claim against Contractor or Company; and (iii) any reports, complaints, notices or warnings of asserted violations to any governmental agency.
13. Waste Handling. Contractor shall manage, handle, and dispose of all wastes generated by its Services, properly and in accordance with all applicable governmental requirements, including those applicable to hazardous waste, and all Company policies, programs, and procedures related to waste handling. If requested in writing by Company, Contractor shall promptly deliver to Company copies of manifests or applicable shipping documents reflecting the legal and proper disposal of any hazardous materials that Contractor has caused to be removed from any of Company’s premises. Except as otherwise approved in writing by an authorized representative of Company, or required by law, Contractor shall not (i) dispose of any waste on, in, under, or about Company’s property or any container thereon; or (ii) list Company as a waste generator.
14. Governmental Permits and Notifications. Contractor shall investigate the need for, and shall procure in its own name, to the extent allowed by law, all governmental permits, notifications, approvals, and inspections required for the performance of Contractor’s Services under this Agreement. Contractor shall promptly notify Company in writing if any permit or approval lapses, or is modified, or revoked. If, under applicable law, any such permits or approvals must be procured in Company’s name, Contractor shall promptly so inform Company and shall assist Company in obtaining such permits or approvals.
15. Compliance. Contractor shall comply with the applicable local, state, and federal environmental, health, and safety rules and regulations. Contractor acknowledges and agrees that it is Contractor’s responsibility to understand all site policies, procedures, and programs relating to environmental protection, safety, and health, and to ensure that employees and contractors understand such policies, procedures and programs. Contractor agrees to perform the Services in compliance with, and to furnish only, supplies, articles, and equipment that comply with such laws, standards, regulations, policies, procedures, and programs. Without limiting the foregoing, if any services will be performed in California, Contractor expressly acknowledged that (i) Contractor is aware of the requirements of California Labor Code Section 2810 and expressly represents that Contractor’s fees under this Agreement suffice so that Contractor can, and will, comply with all applicable local, state, and federal laws, or regulations governing the labor or services to be provided; and (ii) Company may, and shall, rely upon such representation.
16. Security. Contractor shall at all times perform Services under this Agreement in a manner to avoid the risk of loss, theft, or damage by vandalism, sabotage, or other means, to any Company property. Contractor shall promptly take all reasonable precautions that are necessary and adequate to protect against conditions that involve a risk of loss, theft, or damage to its property, Company’s property, Company’s Confidential Information, as described in the Agreement, and the work site. Contractor shall continuously inspect all its work, materials, and equipment facilities to discover and determine any of the above-described conditions, and Contractor shall be solely responsible for discovery, determination and correction of any such conditions. Contractor shall cooperate with Company on all security matters, and Contractor shall promptly comply with any project security requirements established by Company. Contractor shall prepare and maintain accurate reports of incidents of loss, theft, or vandalism, and, if requested by Company, Contractor shall furnish these reports to Company in a timely manner. Contractor is solely responsible for the safety of its own personnel.
17. No Assignment. This Agreement may not be assigned or delegated to any other person or entity by either party without the express written consent of the other party. Any assignee must be capable of assuming, and agree to assume, all of the Assignor’s obligations under this Agreement, provided that in no event shall any assignment relieve Contractor of any of its obligations hereunder. Contractor represents and warrants that all services rendered under this Agreement shall be performed by Contractor, its employees, or by subcontractors that it designates in writing, to Company. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties, their successors, and permitted assigns.
18. Notices. Any and all notices or other communications required or permitted by this Agreement or by law, to be served on, or given to, either party under this Agreement shall be in writing, and shall be deemed duly given or delivered when sent via overnight delivery service (e.g., Federal Express), by facsimile (subject to confirmation of receipt), or by registered mail, return receipt requested, by first-class, postage prepaid, addressed to Contractor, or to the Company Representative, as applicable, at the respective address set forth in the Service Supplier Agreement.
19. Entire Agreement. This Agreement, together with any Exhibits attached hereto, and any SOW’s issued hereunder, represents the entire agreement of the parties hereto, related to the subject matter hereof, and any prior agreements, promises, negotiations, or representations, whether oral or written, not expressly set forth in this Agreement, are superseded, and of no force and effect. This Agreement may be modified only in writing, signed by authorized representatives of both parties. There are no other representations, agreements or understandings, written or oral, except as expressly set forth herein. Each party acknowledges that it is not entering into this Agreement on the basis of any representations or promises not expressly contained in this Agreement.
20. Advertising and Publicity. Without Company’s express written permission, Contractor shall acquire no right to use, and shall not use, in any advertising or other materials, the names, characters, artwork, designs, tradenames, copyrighted materials, trademarks or servicemarks of Company, or its subsidiaries, all of which are owned by Company. Notwithstanding any other provision of this Agreement, neither party may issue press releases or endorsements which reference the other party, or include statements attributable to the other party.
21. Waiver. All waivers hereunder must be made in writing and signed by the party to be charged. The failure at any time to require the other party’s performance or any obligation under this Agreement shall not affect the right subsequently to require performance of such obligation.
22. Governing Law & Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Arizona without regard to its conflict of law principles. In the event any litigation should arise between the parties relating to this Agreement, such action shall be brought solely in the State or Federal Courts located in the State of Arizona, and all parties hereto agree to submit to the personal jurisdictions of such courts.
23. Authority. Contractor and Company warrant and represent that the persons signing on their respective behalf’s have full power and authority to enter into this Agreement and to obligate Contractor and Company to their respective performances hereunder.
24. In the event of any litigation between the parties concerning, arising out of, or related to, the Agreement (inclusive of the SOW), the prevailing party in such litigation shall be entitled to be reimbursed by the other party for all its costs and expenses of litigation including, but not limited to, its reasonable attorneys’ fees, such amounts to be determined by the Court, and not a jury.
If you have any questions about Terms and Conditions, You can contact us:
By email: Secure@dmdsystems.com
By mail: 2625 S Roosevelt St #103 Tempe, AZ 85282