Rules of Engagement, Confidentiality, and Limits to Liability & Client Responsibility

9.      RULES OF ENGAGEMENT

9.1.   License and Ownership

9.1.1.    The Provider and its contracted affiliates and subcontractors have created, acquired or otherwise have rights in, and may, in connection with the performance of services hereunder, employ, provide, modify, create, acquire or otherwise obtain rights in, various intellectual, industrial and other property, including, without limitation, concepts, ideas, methods, methodologies, procedures, processes, know-how, techniques, models, templates, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems (collectively, the “Provider Technology”).

9.1.2.   Ownership of Deliverables. “Deliverables” shall mean all work product first created by the Provider for delivery to Client in connection with the Services hereunder but shall not include any third-party software or related documentation licensed directly to Client from a third party, or any modifications or enhancements thereto or derivatives thereof. Upon the termination of the Service, the Provider shall (i) transfer, assign and convey to Client all right, title and interest in and to the Deliverables (except for any Provider Technology contained therein), and (ii) grant to Client a non-exclusive, royalty-free, worldwide, perpetual, non-transferable license to use, for Client’s internal business purposes, any Provider Technology contained in the Deliverables. For greater certainty, all new specially designed and developed computer interfaces, programs, codes and reports (the “Custom Computer Code”) as identified in writing by the Provider and Client (including but not limited to any Custom Computer Code or augmented using software-package specific programming language) shall be for the exclusive use of Client. Notwithstanding (ii) above, Client may transfer the license referenced in (ii) to a purchaser of a business or of substantially all the assets of a business to which the license pertains.

9.1.3.   Ownership of the Provider Property. To the extent that the Provider uses any Provider Technology or any other intellectual, industrial or other property in connection with the performance of its services, the Provider shall retain all right, title and interest in and to such property, and, except for the license expressly granted in Section 9.1.2, Client shall acquire no right, title or interest in or to such property. Notwithstanding the foregoing, to the extent any Provider Technology is incorporated into the Deliverables, Client shall have a perpetual, royalty free right and license to use such Provider Technology.

9.1.4.   “Client Data” means any and all information, content, reports, analytics, and all other data owned, sourced, or under the control of Client (including, without limitation, any Personal Information (as defined below)) provided to the Provider and any edits, improvements or changes made by the Provider thereto. The Provider understands and agrees that nothing in this Agreement shall be construed to convey to the Provider any right, title, interest or copyright in any Client Data, or any license to use, sell, exploit, copy or further develop any such Client Data. All such Client Data, and all intellectual property rights therein, shall be the sole property of Client and the Provider shall provide Client Data in its possession or control to the Client within a three (3) business days after Client’s request for delivery thereof. The Provider will comply with and abide by any ethics or other corporate policies, including, without limitation, record retention policies required (“Client Policy”), the same as communicated to the Provider, and that the Provider will not perform any Services if it is not in compliance with such applicable Client Policy(s), free of conflicts of interest that could negatively affect the Client and in a manner that is not likely to bring harm or disrepute to Client.

9.2.  The Provider agrees to deliver the Services diligently, ethically and in compliance herewith and with all applicable legal requirements.

9.3.  The services may be performed away from the Client’s site by the Provider under the Standards of Performance in section 3.1.

10.     CONFIDENTIALITY

10.1.  To the extent that, in connection with this engagement, each party comes into possession of any proprietary, secret or Confidential Information (“Confidential Information”) of the other party including without limitation any Personal Information, each party agrees to use the Confidential Information of the other party solely for the purposes of this engagement and will not disclose such Confidential Information to any third party. The terms of this engagement, any business plans/methods, marketing strategies, sales forecasts, product development plans or related pricing, supplier names/lists, and non-public financial information shall also be considered Confidential Information.

10.2. Each party shall maintain the Confidential Information of the other party secured using at least the same degree of care as it employs in maintaining in confidence its own proprietary and confidential information, but in no event less than a reasonable degree of care. Notwithstanding the foregoing, Client may disclose the terms of this engagement to a bona fide prospective purchaser of a business, or substantially all the assets of a business, to which this engagement pertains.

10.3. Confidential Information shall not include information which (i) shall have otherwise become publicly available other than as a result of disclosure by the receiving party in breach hereof, (ii) was disclosed to the receiving party on a non-confidential basis from a source other than the disclosing party, which the receiving party believes is not prohibited from disclosing such information as a result of an obligation in favor of the disclosing party, (iii) is developed by the receiving party independently of, or was known by the receiving party prior to, any disclosure of such information made by the disclosing party, or (iv) is disclosed with the written consent of the disclosing party. A receiving party also may disclose Confidential Information to the extent required by an order of a court of competent jurisdiction, administrative agency or governmental body, or by any law, rule or regulation, or by subpoena, summons or other administrative or legal process, or by applicable regulatory or professional standards, or in connection with any judicial or other proceeding involving the and Client relating to Provider’s services for Client or this Agreement. Each of the parties agrees that because of the extraordinary nature of such information, the disclosing party may not have an adequate remedy at law in the event of the non-disclosing party’s breach or threatened breach of its non-disclosure obligations, and that the disclosing party may suffer irreparable injury and as a result of any such breach.  Accordingly, in the event either party breaches or threatens to breach the obligations of confidentiality set forth in this paragraph, in addition to and not in lieu of any legal or other remedies, the non-breaching party may pursue hereunder or under applicable law, and each party hereby shall have the right to seek equitable relief (including the issuance of a temporary restraining order, preliminary injunction or permanent injunction) from a court of competent jurisdiction prohibiting any such breach or threatened breach.

10.4. Privacy & Data Protection.

The Provider and the Client agree that, in connection with this Agreement and any statement of work, the Provider may collect, use, disclose and otherwise process personal information about identifiable individuals (“Personal Information”). The Provider’s Services are delivered on the basis that the Client has obtained any required consents under applicable privacy legislation for collection, use, disclosure and processing of Personal Information, (“Process” and its variants for purposes of this Section includes, without limitation, access, collect, record, organize, use, store, adapt, alter, retrieve, consult, transfer, disclose or destroy) from the provider of said Personal Information. The Provider, its agents and personnel, in connection with this Agreement will process such Personal Information:

10.4.1.  In compliance with any data protection and privacy laws and regulations applicable to the Provider’s processing of Personal Information in accordance with this Agreement (together, the “Data Protection Laws”).

10.4.2. In the agreement, between the Parties, that such Personal Information shall be deemed to be Client’s Confidential Information (as defined herein) and shall be owned by the Client.

10.4.3.Only on the prior written instructions of Client and only to the extent reasonably necessary for performance of the Services.

10.4.4.Implementing reasonable technical and organizational measures to protect that Personal Information against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the Processing involves the transmission of data over a network, and against all other unlawful forms of Processing.

10.4.5. When applicable, implementing measures to protect Personal Information in accordance with compliance programs enacted by Client from time to time and provided to the Provider in writing.

10.5. Notwithstanding anything to the contrary in this agreement, the Client acknowledges that the Provider, in conjunction with performing the services, may develop or acquire general experience, skills, knowledge and ideas that are retained in the memory of its personnel. The Client acknowledges and agrees that the Provider may use and disclose such experiences, skills, knowledge and ideas. Furthermore, the Client grants the Provider the right to use its Trademarks, brand name(s) and logos, and, in general terms without contravention of this Agreement, the effects of the Services stated herein, on all advertising and marketing done by the Provider. The Client reserves the right to revoke such right immediately upon written notice sent to the Provider.

11.     LIMITATIONS TO LIABILITY & CLIENT RESPONSIBILITY

11.1.  Except as expressly set forth herein, the service, and any related software and/or equipment are provided on an “as is” and “as available” basis without warranties of any kind, other than the warranties from the software developer, when applicable. Neither the Provider nor its employees, affiliates, contractors, or agents warrant that the service will be error-free or uninterrupted, without reasonable cause. Advice or information given by the Provider, or its employees, affiliates, contractors, or agents, not contained in the Service Contracts and/or the Recommendations, will not create a warranty.

11.2. For the sake of this Agreement, “Client Party” means, collectively, the Client, the directors and officers, shareholders, affiliates, employees, consultants, end-users as well as third parties authorized by Client in connection with the use of the Services or the execution of this Agreement.

11.3. Under no circumstances shall the Provider be liable for any direct or indirect loss, cost, claim or damage (including, but not limited to, exemplary, punitive, consequential, direct, indirect or special damages, lost savings, lost profits, damages for harm to business, damages to the daily operations, reputation, anticipated revenue or lost revenue or the loss of any data/information) suffered or incurred by a Client Party or any third party arising out of:

11.3.1.  Any faults, interruptions, delay, suspension or termination in the Services or in the Agreement or out of any inaccuracies, errors or omissions.

11.3.2.Any exclusions listed under Section 3.2.

11.3.3.Any Default of a Client Party.

11.3.4.The information provided by a Client Party and relayed to the Provider in rendering the Services or in the Agreement.

11.3.5. The terms and conditions, service level agreements software systems or privacy and data policies of third party providers used when deploying and implementation the Services.

11.3.6.Hacking, migration or deploying of the changes to the Client’s digital infrastructures during the term of this Agreement.

11.4. The Provider is not liable for services, equipment’s or products provided by third parties.

11.5. The Client Party is responsible for, and shall indemnify Provider against, all losses, liability, claims, damages, judgments, expenses and costs, of any kind whatsoever, including reasonable legal fees and disbursements, suffered or incurred by the Provider arising from claims of any third party or its personnel on any basis whatsoever and arising from or in connection with any event, including but not limited to:

11.5.1.  Breach of any covenant, term, representation or warranty of this Agreement by a Client Party.

11.5.2.  The fraud, negligence or willful misconduct of a Client Party in connection with use of the Services or the performance of the Client’s obligations under this Agreement.

11.5.3.  Claims by any third party for libel, slander, passing off or infringement of copyright, trademark or patent, illegal, improper or unauthorized use of the Services arising from the content of the information or data carried or provided by Client Party.

11.5.4.Any bodily injury or property damage caused by a Client Party.

11.5.5.  The Client’s refusal to implement the Recommendations.