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These General Terms & Conditions (i) supplement and are incorporated by reference into the Terms of Service, by and between PartnerHero and the Client identified therein, (ii) together with the Holiday Schedule (the "Holiday Schedule") and Utilization Schedule (the "Utilization Schedule") identified in the Terms of Service collectively constitute the entire Agreement between the Parties regarding the subject matter hereof and thereof, as applicable, and (iii) supersede all prior and contemporaneous agreements, proposals or representations, written or oral, regarding such subject matter. To the extent of any conflict or inconsistency between the terms of the Terms of Service and these General Terms & Conditions, the terms on the Terms of Service shall prevail. All terms used in these General Terms & Conditions but not defined shall have the meaning set forth in the Terms of Service. In addition, PartnerHero may modify these General Terms & Conditions, the Holiday Schedule and/or the Utilization Schedule at any time by making such revised version available to the Client and notifying the Client of such update. Client will be required to agree to such revised terms prior to continuing to use the Services. Notwithstanding anything to the contrary contained herein, by continuing to use the Services after the effective date of any such modifications, the Client agrees to be bound by the modified terms. PartnerHero last modified these General Terms & Conditions on the date listed at the beginning of these General Terms & Conditions.
The following definitions apply to this Agreement:
2.1. “Affiliate” means any corporation, partnership, joint venture, joint stock company, limited liability company, trust, estate, association or other entity the existence of which is recognized by any Governmental Entity that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with PartnerHero or Client. For purposes of this definition the term “controls” and the phrases “is controlled by” or “under common control with” mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract or otherwise.
2.2. “Agent” means a PartnerHero personnel working at a PartnerHero Facility, employed by PartnerHero and trained by PartnerHero to provide the Services.
2.3. “Agreement” shall have the meaning set forth in the Cover Page.
2.4. “Business Day” means any day excluding Saturday, Sunday and any day that is a legal holiday under the laws of the state of California or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close.
2.5. “Change In Control” means (a) a merger involving either Party in which such Party is not the surviving entity, (b) a merger involving either Party in which such Party is the surviving entity but the holders of the voting securities of such Party immediately prior to the merger own less than fifty percent (50%) of the combined voting power of the outstanding voting securities of such Party following the merger, (c) a sale or disposition of all or substantially all of either Party’s property, assets or business (other than to an Affiliate) or (d) a sale, assignment or other transfer of either Party’s equity securities of greater than fifty percent (50%) of the total combined voting power of such Party’s outstanding voting securities at the time of such transfer.
2.6. “Client” shall have the meaning set forth in the Cover Page.
2.7. “Client-Indemnitees” shall have the meaning set forth in Section 8.2.1 (Indemnification by PartnerHero).
2.8. “Client Information” means all Confidential Information and Personal Information that PartnerHero Processes on behalf of, or receives from or on behalf of Client, including from Customer Contacts.
2.9. “Client Material” means all information systems, equipment and technology, software, tools, methods, forms, processes, procedures, workflows, data, scripts, data formats, data compilations, program names, designs, manuals and other material owned by, licensed to, or developed by or for Client that is made available to PartnerHero and its Personnel for use in rendering the Services under this Agreement.
2.10. “Client Tools” means sufficient copies of any products and related materials (in addition to any additional products and related materials as mutually agreed upon by the Parties in writing), required by Client to be used by PartnerHero to provide any Services.
2.11. “Confidential Information” means confidential or proprietary information of a Party in electronic, oral, printed, written, or other tangible or intangible forms, which may include, but is not limited to, financial information, business plans, customer or client lists, marketing or sales plans, pricing or pricing strategies, customer proposals, product or service information, operational techniques, methods of operation, strategic plans, discoveries, ideas, concepts, know-how, software, techniques, designs, specifications, drawings, blueprints, tracings, diagrams, models, samples, flow charts, data, computer programs, disks, diskettes, tapes and other technical, legal or business information. Confidential Information, which is disclosed pursuant to this Agreement, whether provided in tangible or intangible form, including but not limited to electronic mail or other electronic communications, shall be deemed confidential or proprietary if it is clearly marked or otherwise identified as being confidential or proprietary, or by its nature should be reasonably understood to be confidential or proprietary. In addition, any such information that is orally disclosed shall constitute Confidential Information hereunder if, at the time of disclosure, the Discloser declares that it is confidential or proprietary. The existence of this Agreement also shall be considered Confidential Information of the other Party hereto, and neither Party shall disclose to any third party that Confidential Information has been or will be exchanged (except where required by law). Confidential Information also includes copies of and materials or products derived from Confidential Information, such as analyses, compilations, data, studies and reports. Confidential Information shall include the Personal Information of Client’s customers as well as any other information about Client customers received by or that PartnerHero has access to, including all information disclosed to PartnerHero during or related to any Customer Contact.
2.12. “Consumers” shall have the meaning set forth in Section 9.4 (PartnerHero’s Consumer Information).
2.13. “Customer” means an individual that contacts into or receives a contact from an Agent in relation to the Services.
2.14. “Customer Contact” means a single incoming or outbound support request from or to a Customer, via telephonic voice, fax, written or electronic correspondence regarding any Client product or service.
2.15. “Disclosure” shall have the meaning set forth in Section 10.1.1 (Disclosure of Confidential Information).
2.16. “Effective Date” shall have the meaning set forth in the Cover Page.
2.17. “Facility” shall have the meaning set forth in Section 3.3 (Call Center Facilities).
2.18. “Fees” shall have the meaning set forth in the Cover Page.
2.19. “Force Majeure Event” shall have the meaning set forth in Section 11.3 (Force Majeure).
2.20. “Go Live Date” shall be the date on which the first Agent(s) are trained by Client and ready to start performing the Services.
2.21. “Governmental Entity” means any entity or body exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to United States federal, state or local government or foreign, provincial, international, multinational or other government, including any department commission, board agency, bureau, official or other regulatory, administrative or judicial authority thereof.
2.22. “Handle” means to receive and process Customer Contacts in accordance with operating procedures set forth in this Agreement and as may be mutually agreed by the parties in writing from time to time.
2.23. “Initial Term” shall have the meaning set forth in the Cover Page.
2.24. “Indemnification Claim” shall have the meaning set forth in Section 8.2.3 (Indemnification Notification and Procedure).
2.25. “Indemnified Party” shall have the meaning set forth in Section 8.2.3 (Indemnification Notification and Procedure).
2.26. “Indemnitor” shall have the meaning set forth in Section 8.2.3 (Indemnification Notification and Procedure).
2.27. “Intellectual Property Rights” shall mean, on a worldwide basis, any and all:
2.27.1. Rights associated with works of authorship and literary property, including copyrights, moral rights of an author of a copyrightable work (including any right to be identified as the author of the work or to object to derogatory treatment of the work), and mask-work rights;
2.27.2. Trademarks, service marks, logos, trade dress, trade names, whether or not registered, and the goodwill associated therewith;
2.27.3. Rights relating to know-how or trade secrets, including ideas, concepts, methods, techniques, inventions (whether or not developed or reduced to practice);
2.27.4. Patents, designs, algorithms and other industrial property rights;
2.27.5. Rights in domain names, universal resource locator addresses, telephone numbers (including toll free numbers) and similar identifiers;
2.27.6. Other intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise; and
2.27.7. Registrations, initial applications (including intent to use applications), renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).2.28.“Law” or “law” means any statute, decree, constitution, regulation, decision, common law, finding, order, rule, code, ordinance, judgment, or directive of any governmental authority, or any treaty, convention, pact, compact, or other agreement to which any governmental authority is a signatory or party, and includes any judicial or administrative interpretation or application of any of the foregoing, including any guideline, guidance, directive, interpretation, rule, or regulation of any person, whether or not having the force of law (but, if not having the force of law, with respect to which compliance is customary), and is a reference to any of the foregoing as amended, substituted, reissued, or reenacted.
2.29.“Losses” means losses, damages, judgments, liabilities, penalties, costs and expenses (including reasonable attorneys’ fees, costs and other litigation expenses).
2.30.“Marks” means any United States or foreign trademarks, service marks and trade names, including any registration or application for registration of any trademarks and service marks in the United States Patent and Trademark Office or the equivalent thereof in any state of the United States or in any foreign country, as well as any unregistered marks, and any trade dress (including logos, artwork, designs, company names, business names, fictitious names and other business identifiers) in the United States or any foreign country.
2.31.“Parties” or “Party” shall have the meaning set forth in the Cover Page.
2.32.“Personal Information” means any information that identifies or could reasonably be used to identify an individual person, including but not limited to names, social security numbers, driver’s license numbers, tax identification numbers, addresses and telephone numbers), any information that identifies characteristics (such as qualities, likes, dislikes, propensities or tendencies) of any person, or any information which is compiled or derived from any of the foregoing.
2.33.“Personnel” means a Party’s officers, directors, employees and authorized agents, and in the case of PartnerHero the PartnerHero Subcontractors approved by Client who contribute to the performance of such Party’s obligations under this Agreement. For purposes of the foregoing, a Party and its officers, directors, employees and authorized agents shall not be deemed Personnel of the other Party.
2.34.“Process, Processed or Processing” shall mean any operation in relation to Personal Information irrespective of the purposes and means applied including, without limitation, access, collection, retention, storage, transfer, disclosure, use, erasure, destruction, and any other operation.
2.35.“Recipient” shall have the meaning set forth in Section 10.1.1 (Disclosure of Confidential Information).
2.36.“Renewal Term” shall have the meaning set forth in the Cover Page.
2.37.“Representatives” means the legal representatives, Personnel or advisers of a Party involved in the performance of this Agreement.
2.38.“Services” shall have the meaning set forth in the Cover Page.
2.39.“Subcontractor” shall have the meaning set forth in Appendix C.
2.40.“Term” shall have the meaning set forth in the Cover Page.
2.41.“PartnerHero” shall have the meaning set forth in the Cover Page.
2.42.“PartnerHero Consumer Information” shall have the meaning set forth in Section 9.4 (PartnerHero’s Consumer Information).
2.43. “PartnerHero-Indemnitees” shall have the meaning set forth in Section 8.2.2 (Indemnification by Client).
2.44. “PartnerHero Material” shall have the meaning set forth in Section 9.2 (PartnerHero Material).
2.45. “PartnerHero Personnel” means the personnel hired by PartnerHero to perform the Services, including the Agents.
2.46. “PartnerHero Script Rights” shall have the meaning set forth in Section 9.5 (PartnerHero’s Retained Script Rights).
2.47. “PartnerHero Software” shall have the meaning set forth in Section 9.3 (PartnerHero Software).
3.1 General
During the Term of this Agreement, PartnerHero shall provide, in accordance with the terms and conditions of this Agreement, the Utilization Schedule and at Client’s request and direction, qualified and suitably trained personnel to perform the Services.
3.2. Customer Care Facility
PartnerHero will perform all of the Services from a PartnerHero center (the “Facility”). Each Agent’s workstation will, at PartnerHero’s cost and expense, be equipped with standard computer systems, and various PartnerHero support tools to be used in the delivery of the Services. PartnerHero shall be responsible for all costs and expenses of acquiring, installing, maintaining and operating, as applicable, the Facility and all such workstations and other items used at the Facility in order to provide the Services. PartnerHero shall perform Services in accordance with the law applicable to the provision of said Services.
3.3. Service Coverage
The working hours for the Agents shall be as follows:
3.3.1. Regular Coverage: As agreed upon between Client and PartnerHero, subject to the Utilization Schedule
3.3.2. No Coverage: See the Holiday Schedule
3.3.3. The Agents will provide the Services on a “full time” basis. For purposes of this Agreement “full time basis” means the Services provided by all Agents will average during the operating time period forty (40) hours per week per Agent, subject to the Utilization Schedule and Holiday Schedule
Except as set forth in Section 7.1.3, either Party may terminate this Agreement upon sixty (60) days of receipt of written notice from the Party requesting such termination. In the event of termination pursuant to this Section, the effective date of such termination shall be the date specified in such written notice. In the event of any termination by Client pursuant to this Section other than as a result of a material breach by PartnerHero, which material breach is not cured within sixty (60) days of receipt of written notice from Client, Client shall pay PartnerHero an early termination Fee of not less than two months of the applicable fee for the personnel then providing Services.
4.2. Termination for Force Majeure Event
Except as set forth in Section 7.1.3, PartnerHero may, upon ten (10) days prior written notice, terminate this Agreement upon the occurrence of a Force Majeure Event (as defined in Section 11.3 (Force Majeure) of this Agreement) whereby PartnerHero is not able to perform all or a material portion of its obligations hereunder due to such Force Majeure Event for a period of thirty (30) consecutive days.
4.3. Effect of Termination
Upon termination of this Agreement, (i) Client shall pay to PartnerHero any Fees incurred up through the date of termination for any Services completed; and (ii) each Recipient shall (a) return to the Discloser, or at the Discloser’s option, Recipient shall destroy, all items of Confidential Information then in the Recipient’s possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to Discloser that it has complied with the foregoing in subpart (ii) of this paragraph.
4.4. Survival
This Article and the following Articles or Sections shall survive the expiration or any termination of this Agreement: 4.3 (Effects of Termination, 8 (Representations and Warranties, Indemnification; and Liability), 9 (Intellectual Property and Proprietary Rights), 10 (Confidentiality), and 11 (General Provisions).
5.1. Replacement or Removal of PartnerHero Personnel.
5.1.1 Resignation or Termination
In the event an Agent resigns or is reassigned or terminated by PartnerHero, PartnerHero shall provide Client with as much advance written notice as is practicable.
5.1.2. Client Removal
Client may, in its discretion, require PartnerHero to remove an Agent from performing any Services for any reasonable and lawful reason and PartnerHero shall remove such Agent promptly upon Client’s written request. In the event of removal of an Agent upon Client’s written request pursuant to this Section, Client shall incur costs and fees for such Agent until a new Agent is assigned to Client. In the event that Client requests a replacement Agent, or an Agent otherwise becomes unavailable (such as by resignation or termination), PartnerHero will assign a new Agent to Client as soon as reasonably possible, but in no event longer than ten (10) business days.
5.1.3. Reduction of PartnerHero
The total PartnerHero Personnel then providing Services to the Client may be reduced as set forth in the Terms of Service.
5.1.4. Reassignment/Replacement of PartnerHero Personnel
If PartnerHero replaces, reassigns or removes any PartnerHero Personnel as provided in Section 5.1 (Replacement or Removal of PartnerHero Personnel) above, then the proposed replacement personnel shall be “qualified,” meaning that the proposed replacement personnel shall possess necessary experience, skill and training as the PartnerHero Personnel to be replaced; and as PartnerHero deems warranted, the replacement PartnerHero Personnel shall, if materially and reasonably possible, work with the replaced PartnerHero Personnel during a reasonable transition period.
5.2. PartnerHero Personnel Are not Client Employees
The Parties acknowledge and agree that the Agents are not employees of Client and are not entitled to any of the benefits which Client may make available to Client’s employees, such as group insurance, profit-sharing or retirement benefits. For PartnerHero Personnel that are PartnerHero employees, PartnerHero shall: (a) determine and pay all applicable wages and salaries, including applicable overtime and other premium pay; (b) comply with applicable tax laws and regulations, including income tax and employment tax withholding laws and regulations; (c) comply with all applicable laws and regulations governing the employment relationship between PartnerHero and its employees, including laws and regulations, as applicable, relating to accommodation of disabilities, equal pay, provision of leave (e.g., FMLA, jury duty, etc.), unlawful discrimination, as well as wage and hour requirements; (d) comply with all workers’ compensation insurance coverage laws and regulations; (e) be appropriately licensed or supervised to perform their assigned duties in accordance with applicable laws and regulations; and (f) maintain all required employment records, including I–9, personnel and medical files consistent with applicable laws and regulations and customary business practices.
5.3. Supervision and Conduct of PartnerHero Personnel
Client shall be responsible for providing day-to-day direction and monitoring of the Agents with regard to the Services to ensure the Services provided meet Client’s standards. PartnerHero will instruct Agents to comply with and abide by applicable laws, rules and regulations and the security procedures, rules and codes of conduct of the Client and such other rules and policies as may be formulated by the Client. During the Term, Client shall have exclusive responsibilities for the management of the activities of the Agents; provided, however, that PartnerHero will retain responsibility for all terms and conditions of the Agents’ employment including, but not limited to, counseling the Agents concerning job performance, imposing discipline and terminating employment, if necessary. Client shall notify PartnerHero if it perceives a need for counseling, discipline or termination of any Agent. Client will cooperate and assist PartnerHero in any investigation concerning behavior of the Agents.
5.4. Compliance by PartnerHero Personnel
PartnerHero will advise all Agents performing any Services of the applicable terms of this Agreement and ensure each such individual’s compliance with such terms.
6.1. Client Tools
Client shall be solely responsible for providing the Client Tools to PartnerHero (including any associated delivery costs). PartnerHero acknowledges that its use of any software and related materials included in the Client Tools may be subject to the terms of license agreements and limited based on third party rights. Client shall ensure that the terms of the license agreements are sufficiently broad to enable PartnerHero to use the software for purposes of performing the applicable Services. PartnerHero shall comply with any terms of the license agreements or other written instructions of Client with respect to the Client Tools. Client shall be obligated to supply reasonable documentation or other such written materials included in the Client Tools, and PartnerHero may make any number of copies of such materials as are necessary for it to provide the Services and such copies shall be deemed Client Tools. As between the Parties, Client is and shall remain the owner of all right, title and interest in and to the Client Tools, all Client Tools shall be Client Materials and Client Confidential Information, and all Client Tools will be returned to Client at Client’s expense upon the earlier of (i) Client’s request or (ii) termination of this Agreement.
6.2. Telecommunications
PartnerHero has equipped its Facility with hardware, software and any data connectivity services as are commercially reasonable to handle and service the expected demands of all Client Contacts. In the event Client wishes for PartnerHero to upgrade its Facility with any additional hardware, software or data connectivity services to Handle and service Client Contacts, any such upgrade must be set forth in a Change Order. Client will be responsible for procuring, configuring and deploying any telephony solution required to process inbound and outbound calls. PartnerHero is not responsible for the telephony contract between Client and the provider selected by Client. Client is responsible for any ongoing service, minute, usage and per seat (based on number of Agents) costs associated with the telephony platform and provider. Client will be responsible for addressing any technical, quality or billing related issues associated with the telephony platform and provider.
6.3. Training
6.3.1. Training by Client Trainers
Client trainers will provide training for the PartnerHero Personnel and Agents, unless otherwise agreed upon by the Parties in writing, for the Client related program work. Training will be delivered based on a mutually agreeable schedule.
6.3.2. Training by PartnerHero
PartnerHero will provide training for the PartnerHero Personnel and Agents on basic customer service representative practices, including but not limited to help-desk and ticketing technology, PartnerHero practices and computer systems, telecom system procedures and all other non-Client related required activity required to perform the Services. The cost of this training is included in the set up Fee and will be completed before the Go Live Date. Adding additional Representatives and training provided by PartnerHero for any replacement or incremental Representatives will not require an additional set up Fee obligation on the part of Client.
6.3.3. Training Materials
Client will provide to PartnerHero sufficient copies of all training materials that Client believes are reasonably necessary for PartnerHero to provide the Services. All such materials shall be “Client Materials” for purposes of this Agreement. With respect to any Client software, technical notes and technical documentation for the Client products that are unique or specific to the Services and all updates, upgrades and revisions thereto required to provide the training described in this Section 6.3 (Training), Client will provide to PartnerHero a copy of, or online access to such materials and items at no charge to PartnerHero. PartnerHero agrees to use the materials and items described in this Section solely for the purpose of providing the Services and receiving the training contemplated by this Agreement. PartnerHero may make any number of copies of such materials as are necessary for it to provide training to its Agents to provide the Services. As between the Parties, Client is and shall remain the owner of all right, title and interest in and to all such items and materials described in this Section, such items and materials and all copies, shall be Client Materials and Client Confidential Information, and all such items and materials and all copies thereof will be returned to Client upon the earlier of (i) Client’s request or (ii) termination of the this Agreement.
7.1. Payment Terms.
7.1.1 Payment
PartnerHero shall setup Client for a monthly recurring auto-payment for Services to be performed during the subsequent calendar month. All Payments associated with the applicable Services selected by the Client or other amounts contemplated hereby (including interest pursuant to Section 7.1.5 or taxes pursuant to Section 7.1.6) shall be processed by bank wire, ACH or, if the total number of PartnerHero Personnel then providing the Services is below four (4), credit card. PartnerHero will add any applicable processing fees to the monthly charges. A receipt for each payment will be emailed to Client.
7.1.2 Additional Methods of Payment
PartnerHero reserves the right to add at any time additional method of payment or change such methods of payment.
7.1.3. Termination of Services
If Client does not pay on time for any reason, PartnerHero reserves the right to either immediately suspend or terminate the Services without prior notice to Client.
7.1.4. US Dollars
All charges and payments shall be in United States dollars.
7.1.5. Interest
Late payments are subject to a fee of the greater of: (i) 1% per month; or (ii) the highest rate permitted under applicable law, compounded monthly on the unpaid balance each month.
PartnerHero shall be entitled to all legal and equitable remedies afforded it by law as a result of any breach of this Section 7 by Client, including, but not limited to, recovery from Client of all reasonable costs and attorneys’ fees incurred by it in seeking any such legal or equitable remedy.
7.1.6. Applicable Sales Taxes
The fees payable under this Agreement shall not be construed to include local, state or federal sales, use or other similar taxes or duties. PartnerHero shall include in the applicable receipt those taxes that PartnerHero is required by law to collect from Client. Each Party is responsible for its own tax liabilities. The Parties will cooperate in good faith to minimize all taxes applicable to the Services.
7.1.7. No Accord and Satisfaction
Unless otherwise expressly stipulated in writing and signed by both Parties, no payment by Client or receipt thereof by PartnerHero shall be deemed to be other than a payment toward either the earliest Fee(s) then due and owing.
7.2. Pricing Adjustments
7.2.1. Wage, Tax or Social Charge Increase Adjustment
Following the Initial Term, PartnerHero may request, with at least sixty (60) days prior written notice to Client (unless a shorter time period is required by applicable law), increase to the prices for the Services by an amount equal to any compulsory wage, tax or social charge increase established by a Governmental Entity which increase shall be due from the date on which the decision takes effect. In the event the requested increase is greater than 5% of the then current price (after accounting for any increase pursuant to Section 7.2 above), Client reserves the right to terminate this Agreement with a ninety (90) day notice. In addition, COLA and foreign exchange adjustments may be made as mutually agreed by the Parties in writing.
8.1. Representations and Warranties
8.1.1. Client’s Representations and Warranties
Client, during the Term of this Agreement, covenants, represents and warrants to PartnerHero as follows.
8.1.1.1 Organization; Power
Client is duly incorporated or organized, validly existing and in good standing. Client has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement.
8.1.1.2. Authority and Enforceability
The execution, delivery and performance of this Agreement have been duly authorized by all requisite corporate action on the part of Client. This Agreement constitutes the legal, valid and binding agreement of Client, and is enforceable against Client in accordance with its terms, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting generally creditors’ rights, or by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
8.1.1.3. Approvals
Client has obtained all authorizations, approvals, consents or permits required under all applicable laws and regulations to perform its obligations under this Agreement.
8.1.1.4. No Litigation
There is no action, claim, suit, litigation, proceeding, arbitration or investigation (each, an “Action”) by or for any Governmental Entity pending against Client or its Personnel, or to Client’s knowledge, threatened, that would materially affect Client’s ability to execute, deliver or perform its obligations under this Agreement.
8.1.1.5. No Violation of Law
Client’s execution, delivery and performance of this Agreement does not violate any applicable law, judgment, order, or decree by which Client is bound, and does not result in a breach of, or conflict with, or constitute a default under, any material agreement or contract to which Client is a party. To Client’s knowledge, PartnerHero’s use of Client Material as permitted under this Agreement will not violate or infringe any Intellectual Property Rights of any person or entity.
8.1.2. PartnerHero’s Representations and Warranties
PartnerHero, during the Term of this Agreement, covenants, represents and warrants to Client as follows.
8.1.2.1. Organization; Power
PartnerHero is duly incorporated, validly existing and in good standing. PartnerHero has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement.
8.1.2.2. Authority and Enforceability
The execution, delivery and performance of this Agreement have been duly authorized by all requisite corporate action on the part of PartnerHero. This Agreement constitutes the legal, valid and binding agreement of PartnerHero, and is enforceable against PartnerHero in accordance with its terms, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting generally creditors’ rights, or by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
8.1.2.3. Approvals
PartnerHero has obtained all authorizations, approvals, consents, licenses and permits required to perform its obligations under this Agreement under all applicable laws and regulations.
8.1.2.4. No Litigation
There is no Action by or for any Governmental Entity pending against PartnerHero or its Personnel or to PartnerHero’s knowledge, threatened, that would materially affect PartnerHero’s ability to execute, deliver or perform its obligations under this Agreement.
8.1.2.5. No Violation of Law
PartnerHero’s execution, delivery and performance of this Agreement does not violate any applicable law, judgment, order, or decree by which PartnerHero is bound, and does not result in a breach of, or conflict with, or constitute a default under, any material agreement or contract to which PartnerHero is a party.
8.1.2.6. Performance of Services
PartnerHero has the skills, resources and expertise to provide the Services and the Services shall be provided in a professional and workmanlike manner consistent with the industry standards of quality.
8.1.3. Disclaimer of Other Warranties
The express warranties stated in this section are the sole and exclusive warranties made by PartnerHero under this agreement or relating to the services. There are no other warranties with respect to the services provided under this agreement, whether express, implied, or statutory, including but not limited to all warranties of merchantability, fitness for a particular purpose, or whether arising from a course of dealing, usage, trade practise or any other manner.
8.1.3.1. Indemnification.
8.1.3.1.1. Indemnification by PartnerHero
PartnerHero agrees to defend, indemnify and hold Client and its Personnel (collectively, the “Client-Indemnitees”) harmless from and against Losses actually incurred by the Client-Indemnitees for any third-party claims, suits, actions, proceedings or allegations (including Actions by third parties against one or more Client-Indemnitees) arising out of or relating to: (a) acts or omissions of PartnerHero or its Personnel that result in personal injury or death in connection with the Services, (b) intentional, fraudulent, tortious or grossly negligent acts or omissions or willful misconduct of PartnerHero or its Personnel in connection with the Services, (c) a breach of a covenant, representation or warranty by PartnerHero, (d) the failure of PartnerHero’s Services to comply with applicable laws and (e) third-party claims that any PartnerHero Material used as permitted under this Agreement constitutes an infringement or misappropriation of any Intellectual Property Rights.
8.1.3.1.2. Indemnification by Client
Client agrees to defend, indemnify and hold PartnerHero, and its Personnel (collectively, the “PartnerHero-Indemnitees”) harmless from and against Losses actually incurred by the PartnerHero-Indemnitees for any third-party claims, suits, actions, proceedings or allegations (including Actions by third parties against one or more PartnerHero-Indemnitees) arising out of or relating to: (a) acts or omissions of Client and its Personnel that result in personal injury or death in connection with the Services, (b) an intentional, fraudulent, tortious or grossly negligent act or omission or willful misconduct of Client or its Personnel in connection with the Services, (c) a breach of any covenant in this Agreement by Client; (d) a breach of any representation or warranty in this Agreement by Client, (e) the failure of Client’s products or services to comply with applicable laws, (f) third-party claims that any Client Material used as permitted under this Agreement constitutes an infringement or misappropriation of any Intellectual Property Rights, and any infringement or misappropriation of any Subcontractor’s Intellectual Property Rights. Notwithstanding the foregoing, Client shall have no obligation to indemnify and hold harmless the PartnerHero-Indemnitees to the extent any infringement claim is based on a PartnerHero-Indemnitee’s use of the Client Material in any way other than that required to provide the Services under this Agreement.
8.1.3.1.3. Indemnification Notification and Procedure
Upon becoming aware of any claim for defense and indemnification under this Agreement in connection with a third party claim, suit, action nor proceeding (an “Indemnification Claim”), the Party seeking defense and indemnification (the “Indemnified Party”) shall give written notice thereof to the other Party (the “Indemnitor”) promptly (but in no event later than fifteen (15) days) after the Indemnified Party learns of the existence of such Indemnification Claim; provided, however, the failure to give such notice shall not affect the rights of such Indemnified Party except and only to the extent the Indemnitor is materially prejudiced by such failure. The Indemnitor shall have the right to select and employ legal counsel at Indemnitor’s expense, to defend against any such Indemnification Claim, or to compromise, settle or otherwise dispose of the Indemnification Claim; provided, however, that if the settlement of an Indemnification Claim would adversely affect or otherwise place an obligation (monetary or otherwise) on the Indemnified Party, the Indemnitor shall have the right to settle the Indemnification Claim as to the Indemnified Party only with the Indemnified Party’s prior written consent, which consent may be withheld in the Indemnified Party’s sole discretion. The Indemnified Party shall fully cooperate in the investigation, trial and defense of the Indemnification Claim at its own expense, shall make available to the other Indemnitor any books or records useful for the defense of any such Indemnification Claim, and shall make available its representatives with respect to defense of the Indemnification Claim. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such Indemnification Claim within fifteen (15) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party shall be free to reasonably dispose of the Indemnification Claim, at the expense of the Indemnitor (but only if indemnification is adjudged to be proper), in any way in which the Indemnified Party deems to be in its best interest.
8.1.3.2. Limitation of Liability
8.1.3.2.1. No Consequential Damages
PartnerHero shall not be liable for any indirect, incidental, special, consequential or punitive damages, or any damages for lost data, business interruption, lost profits, lost revenue or lost business, arising out of or in connection with this agreement, even if Partnerhero has been advised of the possibility of such damages, including without limitation any such damages arising out of the services. PartnerHero will not be liable for the cost of procurement of substitute goods or services.
8.1.3.2.2. Limits on liability
PartnerHero shall not be liable for cumulative, aggregate damages greater than the sum of the amounts having then actually been paid by client to PartnerHero under this agreement during the twelve (12) month period preceding the date the claim arose, minus, in all circumstances, any amounts previously paid (as of the date of satisfaction of such liability) by PartnerHero to client in satisfaction of any liability for damages under this agreement.
9.1. Client Material
Subject to the terms and conditions in this Agreement and any limitations or restrictions set forth in agreements between Client and third-party licensors of Client Material (which limitations or restrictions shall be disclosed to PartnerHero at the time such Client Material is made available), Client hereby grants PartnerHero a limited, non-exclusive, non-transferable (except as provided under Section 11.1 (Assignment)), non-sublicensable, fully-paid, royalty-free license during the Term to use the Client Material in accordance with this Agreement for the sole purpose of providing the Services to Client under this Agreement. All Client Materials shall be the Confidential Information of Client.
9.2. PartnerHero Material
Except as expressly set forth in this Section, all rights in and to any and all material, information systems, technology, software and related documentation, tools, methods, forms, processes, procedures, workflows, data, data formats, data compilations, program names, designs, manuals, source code, object code and other material or information created by, owned, licensed to, or developed by PartnerHero or its respective Personnel (a) prior to the Effective Date or (b) after the Effective Date but independent of this Agreement, whether or not used by PartnerHero in connection with the Services, including all Intellectual Property Rights therein (collectively, “PartnerHero Material”), is, shall be, and shall remain, the exclusive property of PartnerHero and/or its third-party licensor(s).
9.3. PartnerHero Software
Client agrees to comply with any additional restrictions expressly provided in writing by PartnerHero with respect to the use of any software provided by PartnerHero (“PartnerHero Software”). It shall be PartnerHero’s responsibility to identify the specific PartnerHero Software and related restrictions. Client acknowledges that such PartnerHero Software, including the structure, organization, and source code of PartnerHero Software, contains valuable trade secrets of PartnerHero. Accordingly, Client agrees not to: (a) sublicense, rent, lease, or otherwise transfer the PartnerHero Software to any third party, (b) modify, alter, translate, or create derivative works of the PartnerHero Software, (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the PartnerHero Software or (d) use or copy the PartnerHero Software for any purpose except for receipt of the Services or as otherwise permitted under this Agreement.
9.4. PartnerHero’s Consumer Information
It is expressly understood and agreed that PartnerHero routinely and in the ordinary course of business receives personal information pertaining to members of the public (“Consumers”) who are the customers and/or potential customers of third parties and that such personal information is provided to PartnerHero by third parties, including customers, potential customers and/or vendors of PartnerHero (“PartnerHero Consumer Information”). Any such PartnerHero Consumer Information received by PartnerHero from any third party may also pertain to Consumers who are also Client’s customers or potential customers. Notwithstanding anything to the contrary in this Agreement or in any other agreement between the Parties, either entered into prior to or after this Agreement, it is expressly agreed that the Parties do not intend to preclude, modify or in any way limit PartnerHero’s right to receive and use the PartnerHero Consumer Information received by PartnerHero from third parties in providing its services to any third party.
9.5. PartnerHero’s Retained Script Rights
It is expressly understood that the scripts of PartnerHero’s clients often include questions and information, and phrasings of questions and of information, that are the same or similar to those contained in the scripts of PartnerHero’s other clients and potential clients, and of other third parties, and it is agreed that such scripts are not proprietary to Client and the Parties do not intend to preclude, modify or in any way limit PartnerHero’s right to provide such scripts and scripting services to third parties, or to provide any other services whatsoever (“PartnerHero Script Rights”).
9.6. Use of Marks; No Other Rights
Neither Party shall acquire a right to use, and shall not use without the other Party’s prior written consent in each instance, any of such other Party’s Marks in any advertising, publicity, public announcement, press release or promotion, or in any other manner tending to imply an endorsement of such Party’s products or services or in any manner except to the extent the other Party has granted express prior written consent to such use (which, if granted, may be withdrawn in any instance); provided, however, that unless Client has provided PartnerHero with express written instructions to the contrary, expressly authorizes PartnerHero to use its Marks in connection with PartnerHero’s marketing. To the extent use is permitted by a Party, the other Party shall maintain all of the original Party’s copyright, trademark, service mark or other proprietary notice on all of such other Party’s advertisements, literature, products or services and otherwise comply with such Party’s reasonable quality control requirements. The restrictions in this Section include disclosures to financial institutions, investors or potential clients.
10.1. Confidentiality of Information
10.1.1. Disclosure of Confidential Information
In connection with the performance of this Agreement, either Party (each a “Recipient”) may have access to or be provided with Confidential Information of the other Party (the “Discloser”). The Recipient shall use the Confidential Information of the Discloser solely in connection with the performance of this Agreement and provision of the Services, and for no other reason. The Recipient shall limit its disclosure of the Confidential Information to those of its Representatives with a “need-to-know” such information in relation to this Agreement or the Services who are under confidentiality obligations no less restrictive than those provided in this Agreement. The Recipient is responsible for compliance to the terms and conditions of this Agreement by its Representatives. The Recipient will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as the Recipient protects its own confidential or proprietary information of a similar nature but in any event with no less than reasonable care. The Recipient shall certify the destruction of all copies of the Discloser’s Confidential Information upon request of the Discloser, with the exception that the Recipient may maintain one (1) copy of the Discloser’s Confidential Information solely to the extent necessary for the Recipient to comply with laws or regulations applicable to such Recipient (and the Recipient shall destroy such retained Confidential Information of Discloser after the legal or regulatory retention purpose expires or otherwise no longer exists). The Recipient’s obligations under this Section shall survive the expiration or termination of this Agreement.
10.1.2. Exceptions to Confidential Information
Notwithstanding the foregoing, the Recipient’s obligations under this ARTICLE 10 with respect to any Confidential Information shall not include any information that the Recipient can show is: (a) a part, or becomes a part, of the public domain through no act or omission on the part of the Recipient or its Representatives; (b) in the Recipient’s possession, without actual or constructive knowledge of an obligation of confidentiality with respect thereto, at or prior to the time of disclosure by the Discloser; (c) disclosed to the Recipient by a third party having no obligation of confidentiality with respect thereto; or (d) independently developed by the Recipient without reference to or access to the Discloser’s Confidential Information, as evidenced by written records of the Recipient. In addition, the Recipient will be allowed to disclose the Confidential Information only to the extent that such disclosure is (i) approved in writing by the Discloser, (ii) necessary for the Recipient to enforce its rights under this Agreement, or (iii) required to be disclosed by law or by the order of a court or similar judicial or administrative body, provided that the Recipient, if not prohibited to do so, notifies the Discloser of such required disclosure promptly and in writing and cooperates with the Discloser, at the Discloser’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure and provided further, that notwithstanding such required disclosure, such information shall continue to be Confidential Information for all other purposes.
10.1.3. Retained Rights of Discloser
Any disclosed or furnished Confidential Information shall be deemed the property of the Discloser, who shall exclusively retain all rights to such Confidential Information. Nothing contained in this Agreement shall be construed as granting or conferring any patent, copyright, trademark or other proprietary rights by license or otherwise in any such Confidential Information, except for the right to use such Confidential Information in accordance with this Agreement.
10.1.4. Disclaimer; Cumulative Confidential Obligation
The confidentiality provisions of this ARTICLE 10 are in addition to, and not in lieu of, the requirements of law applicable to any PartnerHero Consumer Information to which PartnerHero may have access. Confidential Information is provided “as is”. Except for the express warranties set forth in this Agreement, nothing contained herein, or in any Confidential Information shall constitute any express or implied warranty of any kind, including any warranty of title, accuracy, completeness, merchantability, fitness for a particular purpose, or non-infringement of third party rights, with respect to Confidential Information.
11.1. Assignment
Neither Party may assign or transfer this Agreement, in whole or in part, without the prior written consent of the other Party hereto. For purposes of this Section, a Change In Control shall not be deemed an assignment. In addition, a restructuring or reorganization between or among a Party or any one or more of its Affiliates, or a transaction or series of transactions pursuant to which a Party or any one or more of its Affiliates sells, assigns or otherwise transfers assets or equity securities between or among themselves, shall not constitute a Change In Control or assignment, provided that in the case of Client’s assignment to an Affiliate, the assignee shall have a level of capitalization equal to or greater than the higher of the capitalization of Client as of the Effective Date or the date of such assignment to such Affiliate. Any attempted assignment or transfer in violation of the foregoing shall be void.
11.2. Severability and Waiver
In the event that any provision of this Agreement (including any Cover Page) is held to be illegal or unenforceable, such provision shall be limited or stricken to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and be enforceable by and between the Parties hereto. The failure of either Party to enforce at any time any provision of this Agreement, or any amendment or modification hereto and thereto, or either Party’s failure to exercise any option that is herein and therein provided, or its failure to require at any time performance of any provision herein and therein, shall in no way affect the validity of, or act as a waiver of, this Agreement, or any amendment or modification hereof or thereof, or any right of that Party thereafter to enforce it.
11.3. Force Majeure
Notwithstanding any other provision in this Agreement, neither Party shall be liable for any damages or penalty for any delay in the performance of, or failure to perform (except Client’s payment obligations under this Agreement), any obligation under this Agreement or for failure to give the other Party prior notice thereof when such delay or failure is due to the elements, acts of God, acts of a Governmental Entity, terrorism, general strikes, civil unrest, riots, telephone carrier outages and other interruptions of carrier services, or other causes beyond a Party’s reasonable control (such an event, a “Force Majeure Event”).
11.4. Solicitation and Hiring
Without the prior written consent of the other Party, during the Term and for one (1) year after the expiration or termination of this Agreement, neither Party shall, directly or indirectly, solicit for employment or employ, or accept services provided by, any employee, officer or independent contractor of the other Party who performed work in connection with or related to the Services, without the prior written consent of the other Party, which may be withheld for any reason. The (a) publication of classified advertisements in newspapers, periodicals, Internet bulletin boards, or other publications of general availability or circulation, (b) consideration and hiring of persons responding to such advertisements, or (c) use of independent employment agencies or search firms not specifically targeting Client’s or PartnerHero’s employees shall not be deemed a breach of this Section, unless the advertisement and solicitation is undertaken with the intent to circumvent or conceal a breach of this Section. The terms of this Section shall be binding upon the Parties so long as not in conflict with any applicable federal, state or local law or regulation relating to hiring or employment practices.
11.5. Notices
All notices, consents and other communications required or permitted by this Agreement shall be in writing and shall be deemed given to a party (a) on the date delivered to the appropriate address by hand, (b) on the date delivered by a nationally recognized overnight courier service (costs prepaid), (c) on the third (3rd) Business Day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid, or (d) on the date sent by facsimile or e-mail to be confirmed with a copy delivered as provided in clause (a), (b) or (c) above, in each case to the addresses set forth in the introductory paragraph above (or to such other address as a Party may designate by notice to the other Party pursuant to the provisions of this Section).
11.6. Governing Law; Venue
The terms of this Agreement shall be governed by and construed in accordance with the laws of the State of California, United States of America, without resort to conflict of laws rules that would result in another State’s or jurisdiction’s law applying. Each Party irrevocably agrees that any action, suit or other legal proceeding against them shall be brought in the state and federal courts located in Kent, Delaware. By execution and delivery of this Agreement, each Party irrevocably submits to and accepts such jurisdiction and waives any objection (including any objection to venue, enforcement, or grounds of forum non conveniens) that might be asserted against the bringing of any such action, suit or other legal proceeding in such court.
11.7. Compliance With Laws
Each Party shall comply with all laws, ordinances, rules and regulations governing each of the Parties’ respective activities and obligations under this Agreement and within the Parties’ respective industries.
11.8. Cumulative Remedies
Except as may otherwise be provided in this Agreement, all rights and remedies granted to each Party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies otherwise available to such Party at law or in equity.
11.9. Relationship of the Parties
Neither Party to this Agreement is an agent, partner or employee of the other; rather, the Parties are and shall remain independent contractors. PartnerHero shall not be treated as an employee of Client for state or federal income tax purposes, nor will PartnerHero be an employee of Client for purposes of the Federal Unemployment Tax Act, Federal Insurance Contributions Act, the Social Security Act or any other state, federal, provincial or other unemployment or employment security act. PartnerHero is not authorized to make any promise, warranty or representation on Client’s behalf with respect to Client’s products or to any other matter, except as expressly authorized in writing by Client. Client is not authorized to make any promise, warranty or representation on PartnerHero’s behalf as to any matter, except as expressly authorized in writing by PartnerHero. Each Party understands and agrees that its employees shall not be entitled, by operation of this Agreement, to participate in health or disability insurance, retirement or pension benefits, if any, to which employees of the other Party may be entitled.
11.10. Counterparts
This Agreement may be executed in counterparts and all counterparts so executed shall constitute one agreement binding on all the Parties hereto, notwithstanding that all the Parties are not signatories to the original or the same counterpart. This Agreement may be executed electronically by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, which will have the same effect as physical delivery of the paper document bearing the original signature.
11.11. Acknowledgment
The Parties each acknowledge that the terms and conditions of this Agreement have been the subject of active and complete negotiations, and that such terms and conditions should not be construed in favor of or against either Party by reason of the extent to which either party or its professional advisors participated in the preparation of this Agreement.
11.12. Third Party Rights Excluded
This Agreement is an agreement between the Parties and is neither intended to nor does it confer any rights upon any of the Parties’ respective Personnel or contractors or any other person or entity, except as expressly contemplated by this Agreement (e.g., each Party’s indemnitees).
11.13. Construction; English Language
Captions, titles and headings to articles and sections of this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement. The words “including”, “include”, “includes” “for example”, “in particular” and words of similar effect shall not be deemed to limit the general effect of the words which precede them and “including”, “include”, “includes” and “for example” shall be construed to have the words “without limitation” following them. This Agreement was negotiated and executed in the English language. In the event a conflict arises between the terms of this English version and a translation into any other language, the terms of this English version shall prevail. No translated version of this Agreement shall be binding on either Party. The Parties agree that this Agreement and all documents relating to this Agreement shall be written in the English language and no translation shall be binding on either Party. PartnerHero irrevocably declares and acknowledges that it fully understands the contents and provisions of this Agreement, stated in the English language, and that it fully accepts this Agreement, and its effects and consequences.
