PLEASE READ THESE MASTER TERMS AND CONDITIONS (“TERMS AND CONDITIONS”) CAREFULLY BEFORE EXECUTING ANY PROJECT ORDER (AS DEFINED BELOW) OR USING ANY SERVICES OFFERED BY BANDALIER INC. (“BANDALIER”). BY AGREEING TO ANY PROJECT ORDER, YOU (“CLIENT”) AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS (TOGETHER WITH AN APPLICABLE PROJECT ORDER, THE “AGREEMENT”) WITH RESPECT TO SUCH PROJECT ORDER TO THE EXCLUSION OF ALL OTHER TERMS.
1. Project Orders; Project Change Orders.
(a) Project Orders. Any Agreements shall be implemented by Bandalier and Client (each a “Party” and together the “Parties”) through Project Orders executed by authorized representatives of each Party, each of which shall confirm the Parties’ agreement regarding relevant details of the Services to be provided pursuant to such Project Order, which may include the following:
- The nature and scope of the services (“Services”) to be performed by Bandalier (“Project Scope”);
- The number of Bandalier employees and/or consultants assigned to the Project (“Resource(s)”);
- The start date and estimated time frame for performance of the Services (“Project Schedule”);
- The tools, materials, equipment, authorizations, and information to be provided by Client in order to enable Bandalier’s performance of the Services (“Client Materials”);
- The applicable rate(s) for the Resource(s) (“Project Rates”);
- The invoicing and payment terms for the applicable Services (“Invoicing and Payment Terms”); and
- The Parties’ termination rights with respect to the applicable Project (“Notice and Project Termination Rights”).Each Project Order shall become part of the Agreement and shall be subject to all the terms and conditions set forth herein.
(b) Project Change Orders. Except as otherwise provided in a Project Order, any changes to a Project Order must be documented in a change order explicitly referencing such Project Order and mutually executed by authorized representatives of the Parties (each, a “Change Order”). Each Change Order shall become a part of the applicable Project Order upon mutual execution by the Parties.
(c) Conflicts. In the event any provision contained in any Project Order or Change Order conflicts with any provision in these Terms and Conditions, the provision in these Terms and Conditions shall govern; provided, however, that if any Project Order or Change Order expressly references a conflicting provision in these Terms and Conditions that is intended to be modified by such Project Order or Change Order, then such Project Order or Change Order shall govern with respect to such conflicting provision.
2. Standards for Services; Client Cooperation.
(a) Services. Bandalier agrees to provide the Services furnished under this Agreement:
- According to all applicable laws and regulations;
- In accordance with standards and practices which are generally accepted and exercised by other persons engaged in performing similar services; and
- With Resources duly qualified to provide such Services
(b) Resources. Bandalier reserves the right to determine which Resources it assigns to perform the Services listed in the Project Order and any Change Order for Client, and to substitute any assigned Resources with other duly qualified Bandalier employees or consultants at any time during the course of Bandalier’s performance of the Services with ten (10) days’ notice to Client.
(c) Cooperation. Client acknowledges and agrees that, where necessary in order for Bandalier to provide Services in accordance with the standards described in this Agreement or in any Project Order or Change Order, Client has an obligation to timely provide Bandalier with any relevant Client Materials, including those relating to, without limitation, Client’s customer relationship management policies and procedures, employee training materials or programs, marketing or promotional information for products and services, email accounts, quality assurance materials, and customer call scripts. Client acknowledges that the timely provision of and access to Bandalier of any necessary Client Materials and the assistance and cooperation of Client are essential to performance of any Services and that Bandalier’s obligation to complete any Services is dependent upon same. Client’s failure to timely perform any of its obligations under the Agreement or a Project Order shall not cause Bandalier to be liable to Client for any delay resulting therefrom.
(a) Fees. Client agrees to pay Bandalier all fees and expenses in the amounts and at the times specified in the applicable Project Order. Bandalier may, from time to time, implement reasonable fee increases (including with respect to Project Rates) upon thirty (30) days’ written notice to Client. No Change Order shall be required in the event of such fee increases.
(b) Payment Terms. Unless specified in a Project Order, all amounts due hereunder shall be paid in full (without deduction, set-off or counterclaim) within thirty (30) days after invoice receipt by the Client in US dollars at Bandalier’s address or to an account specified by Bandalier. Past due amounts shall bear a late payment charge, until paid, at the rate of 1.0% per month or the maximum amount permitted by law, whichever is less.
(c) Taxes. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Client agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Bandalier’s net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government.
(d) Expenses. Client agrees to reimburse Bandalier for reasonable out-of-pocket costs and expenses incurred in connection with Bandalier’s performance of the Services, provided they are approved in advance in writing by Client. Bandalier agrees to provide reasonable documentation supporting such expenses.
(e) Collection Costs. Notwithstanding anything to the contrary herein, Client promises to pay without protest all collection costs and expenses, including but not limited to all reasonable attorneys’ fees, court costs, collection company fees and other expenses of every kind, incurred by Bandalier in connection with the collection of fees or expenses or other amounts owed by Client, whether or not any lawsuit is filed with respect thereto (including costs and reasonable attorneys’ fees on any appeals or in any bankruptcy proceedings).
4. Intellectual Property.
(a) Client Intellectual Property. All discoveries, ideas, inventions, concepts, developments, know-how, trade secrets, works of authorship, materials, software, processes, techniques, formulas, data, specifications, technology, patent applications, and other creations whether or not patentable (individually and collectively “Intellectual Property”) created by or belonging to Client shall be and remain the exclusive property of Client (“Client Intellectual Property”). Client hereby grants Bandalier a non-exclusive license, during the term of the applicable Project Order, to use the Client Materials and any necessary Client Intellectual Property made available by Client to Bandalier, as required to provide the Services to Client.
(b) Bandalier Intellectual Property. All Intellectual Property created by or belonging to Bandalier, including any proprietary information, software, business processes or tools used or developed by Bandalier to provide the Services (“Bandalier Materials”) shall be and remain the exclusive property of Bandalier (“Bandalier Intellectual Property”). For clarity, all data and leads generated by Bandalier shall be considered Bandalier Materials. Bandalier hereby grants Client a non-exclusive license, during the term of the applicable Project Order, to use the Bandalier Materials and any necessary Bandalier Intellectual Property made available by Bandalier to Client, as required to receive the Services from Bandalier. Bandalier agrees to share prospect or lead lists with Client, and understands Client may follow up with leads generated by Bandalier independently subsequent to termination, using techniques or scripts that may have originated with Bandalier’s outreach.
(c) Aggregate Data. Without limiting anything herein, Client agrees that Bandalier shall have the right
- To use anonymized compilations and analyses of any data, including customer interaction data, collected during its performance of the Services (“Aggregate Data”), and
- To create reports, evaluations, benchmarking tests, studies, analyses, internal customer relationship management and employee training programs and other materials from this Aggregate Data (“Analyses”). Bandalier shall have exclusive ownership rights to, and the exclusive right to use and distribute, such Aggregate Data and Analyses for any purpose; provided, however, that Bandalier shall not distribute Aggregate Data and Analyses in a manner that is identifiable as originating from Client without Client’s written consent.
(d) Feedback. Client may provide input regarding the Services, including, without limitation, comments or suggestions regarding the possible improvement or enhancement of the Services (“Feedback”). Bandalier shall own all Feedback, including all Intellectual Property therein, and such Feedback will be and become Bandalier’s Confidential Information. Client shall and hereby does make all assignments necessary to achieve such ownership by Bandalier, and acknowledges and agrees that Bandalier will be free to use, disclose, reproduce, license, and otherwise distribute and exploit the Feedback as Bandalier sees fit, without obligation or restriction of any kind.
5. Solicitation, Recruitment, Employment or Engagement of Resources.
(a) Limitations. Unless otherwise agreed to in writing by Bandalier, Client agrees that neither Client or its affiliates will solicit, recruit, hire, employ and/or retain any Resource to serve as either an employee, consultant or contractor for Client or any of its affiliates during the first three (3) months of that Resource’s start date listed on Client’s Project Order (“Start Date”). Client agrees and understands that Bandalier incurs significant time and expense in training Resources generally, and selecting Resources for specific clients, like Client, and that any solicitation during the first three (3) months from a Resource’s Start Date with Client will cause Bandalier substantial harm.
(b) Recruitment Fee. If a Resource accepts an offer of employment or offer of engagement as a consultant or contractor for the Client or its affiliate after three (3) months from the Start Date but before six (6) months from the Start Date, Client shall pay Bandalier a recruitment fee of $14,500. If a Resource accepts an offer of employment or offer of engagement as a consultant or contractor for the Client or its affiliate between six (6) months and twenty four (24) months from the Start Date, Client shall pay Bandalier a recruitment fee of $10,000. All such recruitment fees shall be paid within thirty (30) days of the Resource’s acceptance of the offer of employment or engagement with Client or its affiliate.
6. Term and Termination.
(a) Term. This Agreement shall commence on the effective date set forth in the applicable Project Order, and shall remain in force and effect until the termination or expiration of the applicable Project Order, unless terminated by either Party in accordance with these Terms and Conditions or the applicable Project Order.
(b) Termination. Either Party may terminate this Agreement (in whole, or in respect of any Project Order) immediately upon written notice, if the other Party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other Party’s property, or the other Party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other Party and is not dismissed within ninety (90) days, or the other Party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
(c) Effect of Termination. Upon any expiration or termination of this Agreement, all corresponding rights, obligations and licenses of the Parties under this Agreement shall cease, except that
- all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive and
- the provisions of the following sections of these Terms and Conditions shall survive such termination or expiration: Sections 4, 5, 6(d), and 9-13.
7. Warranties and Representations.
(a) General. Each Party represents and warrants that:
- It is a duly organized and validly existing under the laws of the jurisdiction in which it is organized;
- It has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder;
- Each Agreement is legally binding upon it and enforceable in accordance with its terms; and
- The execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
(b) Client. Client represents and warrants that
- It owns the Client Materials or otherwise has the right or authority to grant Bandalier the rights to use the Client Materials as set forth in this Agreement
- Bandalier’s performance of the Services and use of the Client Materials does not violate the privacy rights, publicity rights, copyright rights, contract rights, intellectual property rights, or any other rights of any person or entity, and
- Bandalier’s use of or access to Client Materials will not cause any viruses, worms, time bombs, Trojan horses or other harmful, malicious or destructive code to be installed or introduced on Bandalier’s computer, telecommunication, or other information systems.
(c) Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY OTHER WARRANTIES OF ANY KIND AND BANDALIER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, RELATING TO THE SERVICES PROVIDED HEREUNDER OR THE SUBJECT MATTER OF THIS AGREEMENT OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING LIMITATION, BANDALIER DOES NOT WARRANT THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR THAT SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND DOES NOT GUARANTEE ANY SPECIFIC RESULTS OR OUTCOMES AS A RESULT OF THE SERVICES.
(a) Bandalier Indemnity. Bandalier agrees to indemnify, defend and hold harmless Client, its officers, directors, employees and agents participating in the conduct of the Projects (the “Client Indemnified Parties” and each an “Client Indemnified Party”) from and against any and all third party claims, demands, suits or actions for liability, losses, damages or expenses (including reasonable attorneys’ fees) (each a “Loss,” and collectively, “Losses”) arising directly out of or related to:
- Bandalier’s gross negligence or willful misconduct in the performance of Services under an Agreement, provided, however, that Bandalier’s indemnity obligation under this Section shall not apply to any Losses that arise, in whole or in part, from the negligence, willful misconduct, illegal act, or material breach in the performance of this Agreement by a Client Indemnified Party; and
- Any claims made by a Resource (or a federal or state agency on behalf of or with regard to a Resource) concerning any alleged federal or state income or payroll tax liability or employment benefits claim (including, but not limited to, claims for stock options, 401(K) benefits, health insurance benefits or disability benefits).
(b) Client Indemnity. Client agrees to indemnify, defend and hold harmless Bandalier, its officers, directors, employees (including but not limited to Resources) and agents participating in the conduct of the Projects (the “Bandalier Indemnified Parties” and each a “Bandalier Indemnified Party”) from and against any and all Losses arising directly out of or related to:
- Bandalier’s use of any Client Materials, including but not limited to any information, representation, or materials provided by Client to Resources for distribution or communication to any third party in the performance of Services under this Agreement and/or applicable Project Orders or Change Order(s) or any Client equipment or systems accessed or used by Bandalier for the purpose of providing the Services;
- Services requested by Client under this Agreement in violation of any applicable law, rule, or regulation; and
- Any products, services, or offerings of Client.
(c) Indemnification Procedure. Any claim for indemnification hereunder requires that:
- The indemnified Party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and
- The indemnifying Party shall have sole control and authority to defend, settle or compromise such claim. The indemnifying Party shall not make any settlement that requires a materially adverse act or admission by the indemnified Party without the indemnified Party’s written consent (such consent not to be unreasonably delayed, conditioned or withheld). The indemnifying Party shall not be liable for any settlement made without its prior written consent.
9. Limitation of Liability. IN NO EVENT SHALL BANDALIER BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS, CORRUPTION OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) LOSSES ARISING FROM CLIENT MATERIALS OR CLIENT’S SYSTEMS, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (D) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO IT HEREUNDER UNDER THE APPLICABLE PROJECT ORDER OR CHANGE ORDER DURING THE PREVIOUS 12 MONTHS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(a) Scope. “Confidential Information” means all trade secrets, know-how, inventions, developments, software and other financial, business or technical information disclosed by or for a Party in relation to this Agreement, but not including any information the receiving party can demonstrate is:
- Already known by it without restriction,
- Rightfully furnished to it without restriction by a third party not in breach of any obligation,
- Generally available to the public without breach of this Agreement or
- Independently developed by it without reliance on such Confidential Information. The Services provided by Bandalier and pricing information are Bandalier’s Confidential Information.
(b) Confidentiality. Except for the specific rights granted by this Agreement, the receiving Party shall not access, use or disclose any of the disclosing Party’s Confidential Information without its written consent, and shall use at least the standard of care used to protect its own Confidential Information, but not less than reasonable care, including ensuring that its employees and contractors with access to such Confidential Information
- Have a need to know for the purposes of this Agreement and
- Have been apprised of and agree to restrictions at least as protective of the disclosing Party’s Confidential Information as this Agreement. Each Party shall be responsible for any breach of confidentiality by its employees and contractors. Each Party may disclose only the general nature, but not the specific terms, of any Project Order without the prior consent of the other Party; provided that either Party may provide a copy of any Project Order or otherwise disclose its terms in connection with any legal or regulatory requirement, financing transaction or due diligence inquiry.
(c) Compelled Disclosure. Nothing herein shall prevent a receiving Party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided that prior to any such disclosure, the receiving party shall use reasonable efforts to
- Promptly notify the disclosing Party in writing of such requirement to disclose and
- Cooperate with the disclosing Party in protecting against or minimizing any such disclosure or obtaining a protective order.
(d) Survival. With respect to each Project Order, the restrictions of confidentiality and non-disclosure in this Section shall survive the last date on which Services are provided under the applicable Project Order for a period of three (3) years.
11. Dispute Resolution.
(a) Negotiation. The Parties agree to use good faith efforts to resolve any controversy or claim arising out of or related to this Agreement by negotiation prior to resorting to other remedies. Such negotiation shall
- Include discussion of the issue(s) giving rise to the dispute by appropriate representatives of both Parties involved and
- If such discussions do not resolve the dispute, then upon the written request of a Party, such dispute shall be referred to the senior executives of the Parties who shall meet within ten (10) days to attempt to resolve the dispute.
(b) Mediation. If such senior executives do not resolve the matter within thirty (30) days after the matter is referred to them, then upon notice by either Party (“Mediation Notice”), the Parties must mediate the dispute with one (1) mediator in accordance with the Mediation Procedure established by the International Institute for Conflict Prevention and Resolution, as such procedure may be modified by mutual written agreement of the Parties. The place of mediation shall be in New York, New York. The mediator shall apply the substantive law of the State of New York without regard to its conflicts of law principles. Discovery will be limited to no more than ten (10) interrogatories (including subparts or compound requests), no more than ten (10) requests for production (including subparts or compound requests) and no depositions for either Party. All discovery shall be concluded within thirty (30) calendar days of service of the Mediation Notice, each Party shall pay for its own attorneys’ fees and costs and the Parties shall share the costs of the mediation, including the fee of the mediator, equally.
(c) Right to Bring Suit. If the dispute has not been resolved by mediation to the Parties’ mutual satisfaction within sixty (60) calendar days after the Mediation Notice, either Party shall have the right to bring suit to resolve the contested assertion.
(a) Entire Agreement; Amendments. These Terms and Conditions, together with all corresponding Project Order(s), constitutes the entire agreement between Client and Bandalier, and shall supersede all previous communications, representations, agreements or understandings, whether oral or written, between Client and Bandalier with respect to the subject matter of this Agreement. Only a written instrument signed by each Party hereto may amend these Terms and Conditions, any Project Order and/or any Change Order.
(b) Notices. Except as otherwise provided, all communications and notices required under this Agreement and/or any Project Order shall be mailed by first class mail, postage prepaid, or sent by overnight courier to the addresses set forth above, or to such other addresses as the Parties from time to time specify in writing.
(c) Assignment. Except in connection with a Party’s transfer of all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise) (a “Business Transfer”), neither Client nor Bandalier shall assign this Agreement or any rights hereunder or delegate the performance of any duties hereunder to any third party without the prior written approval of the other Party, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either Party is permitted to assign this Agreement in whole or in part to its affiliates or subsidiaries. In the event of a Business Transfer, this Agreement shall be binding upon, and inure to the benefit of, the successors of the applicable Party and their representatives and affiliates.
(d) Waiver; Severability. A waiver by either Party of any provision or condition of these Terms and Conditions, or any Project Order or Change Order shall not be construed or deemed to be a waiver of any other provision or condition of these Terms and Conditions or such Project Order or Change Order, or a waiver of a subsequent breach of the same provision or condition, unless such waiver is so expressed in writing and signed by the Party to be bound. If any provision of this Agreement is determined to be invalid under applicable law and regulations by a court of competent jurisdiction, such provisions shall be inapplicable and deemed omitted to the extent of such invalidity without impairing the validity of the remaining provisions of this Agreement.
(e) Governing Law; Consent to Jurisdiction. These Terms and Conditions and any Project Order and Change Order are governed by and construed in accordance with the laws of the State of New York without regard to its conflicts of law rules. Each Party submits its person and property to the exclusive jurisdiction of the courts of the State of New York.
(f) Publicity. Client hereby consents to inclusion of its name and logo in client lists that may be published as part of Bandalier’s marketing and promotional efforts. From time to time upon Bandalier’s request, Client agrees it will provide reasonable cooperation and assistance in connection with such efforts (such as, for example, by acting as a reference, issuing press releases and writing testimonials and case studies with statements attributed to a named employee of Client). Bandalier may issue a press release concerning the arrangements under this Agreement between Client and Bandalier, which will be provided to Client for review and approval, which approval will not be unreasonably withheld or delayed.
(g) Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected Party shall give written notice thereof to the other Party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
(h) Independent Contractor. The Parties shall be independent contractors under this Agreement, and nothing herein will constitute either Party as the employer, employee, agent or representative of the other Party, or both Parties as joint venturers or partners for any purpose.
(i) Counterparts. Any Project Order and/or any Change Order may be executed in counterparts, each of equal dignity, which, when joined, shall constitute one document. Any photocopy or facsimile of any Project Order and/or any Change Order or of any counterpart shall be deemed to be the equivalent of an original.