Vernovis Business Solutions Terms and Conditions
These Terms and Conditions govern the purchase and use of Vernovis Business Solutions’ (VBS) services and any associated deliverables (“Services”) from VBS. These Terms and Conditions (“Agreement”) are incorporated into each Statement of Work (“SOW”) between Client and VBS. “Client” for purposes of this Agreement shall mean the party listed on the applicable SOW. Client and VBS are individually referred to as a “Party” and collectively as the “Parties.”
1. DEFINITIONS. For purposes of this Agreement, the terms below shall have the following meanings whenever capitalized:
1.1 “Affiliate” means any entity controlling, controlled by or under common control with a Party, where “control” is defined as (i) the ownership of at least fifty percent (50%) of the equity or beneficial interests of such entity; (ii) the right to vote for or appoint a majority of the board of directors or other governing body of such entity; or (iii) the power to exercise a controlling influence over the management or policies of the entity.
1.2 “SOW Effective Date” shall be the SOW Effective Date Listed on the applicable SOW.
1.3 “Deliverables” means any documentation, programs or other materials created under an SOW by VBS.
2.1 The Services to be rendered to Client shall be described in one or more SOWs. In the event of any conflict between the terms of the SOW and those of this Agreement, the terms of the SOW will prevail.
2.2 If Client would like to make any changes to a SOW, including to any Services or Deliverables, VBS will provide pricing to Client for such changes on VBS’s change order process (“Change Order”), which will be subject to mutual agreement. VBS will not be obligated to perform any Services until VBS’s Change Order has been signed by Client. Any changes to the agreed upon schedule for on-site work that requires travel will incur a re-scheduling fee equal to all out-of-pocket expenses for modifying the travel arrangements.
2.3 For any Services performed at a Client facility, Client agrees to provide VBS personnel with a suitable place of work that complies with applicable federal, state and local health and safety laws.
2.4 Client assumes responsibility for its compliance with applicable state and federal labor and employment laws that pertain to VBS personnel who is performing services for Client at a Client facility. This includes, but is not limited to, allowing ample time for rest and meal periods as required under state or local law, and maintaining a work environment that is not discriminatory or harassing based on any protected characteristics under federal, state or local law.
2.5 Client agrees that VBS personnel assigned by Vernovis to perform Services to Client shall not use or operate any motor vehicle in providing services to Client, unless Client obtains Vernovis’ prior written consent.
3. TERM AND TERMINATION
3.1 Term. This Agreement will begin on the SOW Effective Date and will continue until terminated or the expiration of all SOW(s) Terms.
3.2 Termination for Breach. If a Party materially breaches any provision of this Agreement and/or a SOW and fails to remedy such breach within thirty (30) days of receipt of written notice from the nonbreaching party, the nonbreaching party may terminate any SOW adversely affected by such breach. Termination under this Section 3.2. does not limit either Party from pursuing any other remedies available to such Party, including, but not limited to, injunctive relief.
3.3 VBS Suspension or Termination of Services. VBS may: (a) upon ten (10) days written notice to Client, suspend any Services being performed if Client commits any material breach of this Agreement until Client cures such material breach; and/or (b) terminate this Agreement and/or any and all SOWs for any reason upon giving sixty (60) days written notice to Client.
3.4 Client Termination. Client may terminate any SOW at its convenience at any time by providing sixty (60) days written notice to VBS. If Client terminates any SOW for convenience prior to the end of the Term for the SOW, Client is responsible for: (i) one hundred percent (100%) of all deferred payments and a pro-rata portion of any previously waived charges or fees substantiated by VBS; (ii) all non-cancellable third party charges; (iii) all outstanding amounts under all Invoices, and (iv) the greater of (a) an early termination charge equal to the average amount paid by Client to VBS during the preceding three (3) months multiplied by the number of months remaining in the SOW Term for the SOW terminated; or (b) 100% of the monthly Service Fees for the terminated SOW, multiplied by the number of months remaining in the SOW Term. Client acknowledges that these termination fees are a genuine pre-estimate of the damages VBS will incur as a result of the termination. Client will pay such amounts owed and termination fees within ten (10) days after the termination date. Client acknowledges and agrees that Client shall not be entitled to any refund of any pre-paid fees under the Agreement.
3.5 Termination in Event of Insolvency or Bankruptcy. Either Party may terminate this Agreement upon written notice to the other Party in the event (i) the other Party files a petition for bankruptcy or is adjudicated a bankrupt; (ii) a petition in bankruptcy is filed against the other Party and such petition is not dismissed within thirty (30) calendar days; (iii) the other Party becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy or other similar law; (iv) the other Party discontinues its business; or (v) a receiver is appointed for the other Party or its business.
3.6 Survival. In the event of any termination or expiration of this Agreement for any reason, all provisions of this Agreement whose meaning requires them to survive shall survive the expiration or termination of this Agreement, including, but not limited to Sections 1, 3.4, 3.6, 4.1-4.3, 5.2-5.7, 6.1, 6.2, 8.1, 8.2 and 9.1-9.10.
4.1 Terms. Client will pay VBS all fees due upon receipt of an invoice specifying the amounts due. If any undisputed amount payable to VBS is in arrears for more than thirty (30) days from the date of invoice receipt, VBS reserves the right, in addition to any other remedy, to (a) charge interest on such overdue amount on a day to day basis from the invoice date until paid in full at the rate of the lesser of one and a half percent (1.5%) per month, or the maximum rate permissible under applicable law; and (b) suspend the provision of the Services until such time as payment is received; provided that VBS shall not suspend the provision of Services without first providing at least five (5) business days advance notice to Client. Client shall be responsible for payment or reimbursement of reasonable attorneys’ fees and court costs and other expenses incurred by VBS to collect amounts owed by Client.
4.2 Taxes. All Fees payable under this Agreement are exclusive of sales, use, VAT, customs duties, excise, and any other applicable transaction taxes, which Client will pay (excluding taxes based upon the net income of VBS).
4.3 Expenses. Unless otherwise stated in a SOW, Client agrees to pay or reimburse VBS for all actual, necessary, and reasonable expenses incurred by VBS in performance of such SOW, which are capable of verification by receipt. VBS will submit invoices to Client for such fees and expenses either upon completion of the Services, or at stated intervals, in accordance with the applicable SOW.
5. PROPRIETARY RIGHTS AND CONFIDENTIALITY
5.1 License. Subject to the terms of this Agreement, VBS grants Client a limited, non-exclusive, non-transferable license to use and modify all Deliverables provided as part of the Services solely for its own internal use.
5.2 Ownership. VBS owns all right, title and interest in the Deliverables, including all intellectual property rights embodied therein. Nothing in this Agreement is intended to or will have the effect of vesting in or transferring to Client rights in VBS’s or its affiliates’ or its or their suppliers’ software, methods, know-how or other intellectual property, regardless of whether such intellectual property was created, used or first reduced to practice or tangible form in the course of performance of the Services, whether solely by VBS or jointly with Client.
5.3 Obligations. Both Parties acknowledge that either Party may receive (the “Receiving Party”) Confidential Information (as defined hereinafter) from the other Party (the “Disclosing Party”) during the term of this Agreement and such Confidential Information will be deemed to have been received in confidence and will be used only for purposes of this Agreement. The Receiving Party shall use the Disclosing Party’s Confidential Information only to perform its obligations under this Agreement and disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s personnel having a need to know the information for the purpose of this Agreement. The Receiving Party shall treat the Confidential Information as it does its own valuable and sensitive information of a similar nature and, in any event, with not less than a reasonable degree of care. Upon the Disclosing Party’s written request, the Receiving Party shall return or certify the destruction of all Confidential Information, and the obligation of confidentiality shall continue for three (3) years from the expiration or termination of this Agreement; provided, however, the Receiving Party shall keep (i) any personally identifiable information (“PII”) confidential in perpetuity; and (ii) any trade secrets of the Disclosing Party confidential as long as such information is deemed a trade secret.
5.4 Definition. The term “Confidential Information” includes, without limitation, (i) all information communicated by the Disclosing Party that should reasonably be considered confidential under the circumstances, notwithstanding whether it was identified as such at the time of disclosure; (ii) all information identified as confidential to which Receiving Party has access in connection with the subject matter hereof, whether before or after the Effective Date; and (iii) this Agreement, and shall include, without limitation, (A) all trade secrets, (B) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any information related thereto, and (C) information relating to business plans, sales or marketing methods and customer lists or requirements.
5.5 Exceptions. The obligations of either Party under this Section 5 will not apply to information that the Receiving Party can demonstrate (i) was in its possession at the time of disclosure and without restriction as to confidentiality; (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the Receiving Party; provided, however, PII remains subject to confidentiality obligations regardless of its availability to the public or availability through unauthorized disclosure; (iii) has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by the Receiving Party; or (iv) is independently developed by the Receiving Party without regard to the Confidential Information of the other Party.
5.6 Disclosure by Law. In the event the Receiving Party is required by law, regulation, stock exchange requirement or legal process to disclose any of the Confidential Information, the Receiving Party agrees to (i) give Disclosing Party, to the extent possible, advance notice prior to disclosure so the Disclosing Party may contest the disclosure or seek a protective order, and (ii) limit the disclosure to minimum amount that is legally required to be disclosed.
5.7 Injunctive Relief. Both parties acknowledge that their violation of this Section 5 may cause the other party immediate and irreparable harm. In the event of such breach, the breaching party agrees that the other party may seek, in addition to any and all other remedies available at law, an injunction, specific performance or other appropriate relief.
6. LIMITATION OF LIABILITY
6.1 VBS’S TOTAL LIABILITY FOR ALL CLAIMS AND DAMAGES ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID BY CLIENT TO VBS UNDER THE APPLICABLE SOW GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PRIOR TO WHEN THE CLAIM FIRST AROSE. CLIENT IS REQUIRED TO FILE ANY CLAIM OR ACTION IN A COURT OF COMPETENT JURISDICTION WITHIN SIX (6) MONTHS AFTER THE CLAIM FIRST AROSE OR SUCH CLAIM OR ACTION IS FOREVER BARRED.
6.2 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT, ANY SOW, ANY THIRD PARTY’S ACTS, OMISSIONS OR TERMS AND CONDITIONS, OR THE USE OR DELIVERY OF THE PRODUCTS AND SERVICES HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
7.1 Authorization Warranty. The Parties represents and warrants that (i) they have full power and authority to execute and deliver this Agreement and to perform its obligations hereunder without any further ratification or approval; (ii) this Agreement constitutes the legal, valid and binding obligations of the Parties; and (iii) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will violate or conflict with any obligation, contract, lease or license which could reasonably be expected to interfere with the consummation of the transactions contemplated hereby.
7.2 All Necessary Rights. If, as part of VBS’s performance of Services, VBS is required to use, copy or modify any third party system (hardware, software or other technology) provided or licensed to Client, then prior to VBS’s performance of such Services, Client will acquire all rights necessary for VBS to perform such Services.
7.3 Limited Services Warranty. VBS warrants that the performance of the Services will be of a quality conforming to generally accepted practices that are standard within the information technology services. Client’s exclusive remedy and VBS’s entire liability under this warranty will be for VBS to re-perform any non-conforming portion of the Services within a reasonable period of time, or if VBS cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Services. This warranty will not apply to the extent Client, its contractors or agents have modified any Deliverable, unless otherwise authorized by VBS in writing. THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. EACH PARTY AND THEIR LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, RESULTS TO BE DERIVED FROM THE USE OR INTEGRATION WITH ANY SERVICES PROVIDED UNDER THIS AGREEMENT, OR THAT THE OPERATION OF ANY DELIVERABLES OR SERVICES WILL BE SECURE, UNINTERRUPTED, ERROR-FREE, OR CAN OR WILL PREVENT A SECURITY BREACH OR UNAUTHORIZED ACCESS TO OR LOSS OF CLIENT DATA. Client agrees that it is not relying on delivery of future functionality, public comments or advertising of VBS or product roadmaps in entering into this Agreement.
8.1 Infringement Claims. If a third party asserts a claim against Client asserting that the Deliverables and/or VBS’s performance of the Services in accordance with the terms of this Agreement violates a patent, trade secret or copyright (an “Intellectual Property Right”) owned by that third party (“Infringement Claim”), then VBS will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Client for any damages finally awarded against Client, but only if Client promptly notifies VBS of any Infringement Claim, VBS retains sole control of the defense of any Infringement Claim and all negotiations for its settlement or compromise, and Client provides all reasonable assistance requested by VBS. VBS will not be liable for any expenses or settlements incurred by Client without VBS’s prior written consent.
8.2 Client Indemnification. Client shall defend, indemnify, and hold harmless VBS, its directors, officers, agents, officials, shareholders, and employees from and against any and all claims, actions, causes of action, liabilities, fines, penalties, judgments, liens, and costs and expenses, including court costs and reasonable attorney fees arising out of: (i) grossly negligent or willful act or omission of Client; (ii) material breach of this Agreement by Client; or (iii) failure by Client to comply with any applicable federal, state or local laws, rules, and regulations.
9.1 Independent Contractor. Nothing in this Agreement will be construed to make either party an employer, employee, agent or partner of the other, and this Agreement will not be construed to create rights, express or implied, on behalf of or for the use of any party other than VBS and Client. Nothing in this Agreement will be construed to create a partnership or joint venture between the parties. All of the Services performed by VBS will be performed as an independent contractor. VBS will perform such Services under the general direction of Client, but VBS will have sole discretion to determine the manner, method and means of performing such Services subject to the provisions of this Agreement and applicable Statement of Work. Neither party will have any authority to make any contract in the name of or otherwise to bind the other party.
9.2 Non-Solicitation. During the term of this Agreement, and for a period of one (1) year thereafter, Client agrees not to solicit or hire any employees or contractors of VBS assigned to perform Services for Client under this Agreement, without the prior written consent of VBS.
9.3 Notices. All notices, requests, demands, waivers and other communications required or permitted hereunder must be in writing and shall be deemed to have been duly given (a) when delivered by hand or confirmed facsimile transmission; (b) one (1) day after delivery by receipted overnight delivery; or (c) three (3) days after being mailed by certified or registered mail, return receipt requested, with postage prepaid to the Party at the following addresses: (i) if to Client, the address provided on the SOW, and (ii) if to VBS, to: Vernovis, Ltd., 4770 Duke Dr. Suite 180, Mason, OH 45040; Attn: Susan Miller (or any updated address properly noticed hereunder).
9.4 Assignment. Neither party may assign this Agreement or any rights granted in this Agreement to any third party, except with the prior written consent of the other party, provided that VBS may assign to an Affiliate.
9.5 No Waivers. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision of this Agreement, whether or not similar, nor shall such waiver constitute a continuing waiver unless otherwise expressly so provided in writing. The failure of either Party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by either Party of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a Party to enforce each and every such provision thereafter.
9.6 Force Majeure. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement.
9.7 Severability. If any provision of this Agreement is adjudged by a court to be invalid, void or unenforceable, the Parties agree that the remaining provisions of this Agreement shall not be affected thereby, that the provision in question may be replaced by the lawful provision that most nearly embodies the original intention of the Parties, and that this Agreement shall in any event otherwise remain valid and enforceable.
9.8 Entire Agreement. This Agreement, including all SOWs and exhibits referenced herein, constitutes the complete integrated agreement between the Parties concerning the subject matter hereof. All prior and contemporaneous agreements, understandings, negotiations or representations, whether oral or in writing, relating to the subject matter of this Agreement are superseded and canceled in their entirety.
9.9 Publicity. Client agrees and consents to give VBS the express right to use Client’s company logo in marketing, sales, financial, and public relations materials and other communications solely to identify Client as a VBS Client and relay Client’s experience with VBS. Other than as expressly stated herein, VBS shall not use the Client’s marks, codes, drawings or specifications without the prior permission of the Client.
9.10 Governing Law and Dispute Resolution, Mediation and Arbitration. The laws of the State of Ohio shall govern this Agreement. Any and all disputes arising out of, or relating to, the performance of services contracted for under this Agreement shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, or any successor thereto then prevailing. This Agreement includes any claims that VBS may have against Client, or that Client may have against VBS or against any of its officers, directors, employees, agents, or parent, subsidiary, or affiliated entities. Such arbitration shall be final and binding upon the parties and shall be the sole and exclusive remedy of the parties. The costs of such arbitration shall be born equally by the parties. Claims and questions related to the arbitrability of any claim or dispute shall likewise be heard and decided through arbitration and not by a court. Prior to initiating arbitration, the parties shall first attempt to resolve the dispute amicably by submitting the dispute, claim or disagreement to non-binding mediation administered by the American Arbitration Association. If the dispute, claim or disagreement is not resolved within 30 days after the initial mediation meeting among the parties and the mediator, or if the mediation is otherwise terminated, then either party may submit the dispute, claim or disagreement to binding arbitration.