Terms of Service
Independent Consultant; Services: Subject to the terms and conditions of the Proposal, the Statement of Work, these Terms of Business and any document or instrument referred to in any one of them which are hereby incorporated by this reference (collectively the “Agreement"), the Client hereby engages Company as an independent consultant to perform the services described in the Agreement (the Services”), and Company (Tripify, Inc) hereby accepts such engagement. Company and Client acknowledge and agree that this Agreement is primarily an agreement for the provision of the Services and that any items deliverable or delivered in connection with this Agreement are ancillary to the primary purpose of the parties in entering into the Agreement. In the event of any inconsistency or conflict between the terms and conditions provided for in the Proposal, the Statement of Work, these Terms of Business or any document or instrument referred to in any one of them, these Terms of Business shall control.
Cooperation: Client hereby acknowledges that successful performance by Company of the Services (Tripify, Inc) shall require Client to cooperate with Company in good faith and to provide information as may be requested by Company from time to time. Client hereby agrees to provide in good faith such cooperation and information. Company hereby acknowledges that in order for Client to provide information, Company must provide sufficient and reasonable advance notice to Client to enable Client to comply with information requests. Company hereby agrees to provide sufficient and reasonable notice to Client for all such requests.
Acceptance of Work Products: Client shall have thirty (30) days, unless otherwise provided in a Statement of Work, after completion of the Services and delivery of the results and proceeds of the Services hereunder (the “Work Product") to test the Work Product (“the Acceptance Period") and to notify Company in writing of its acceptance or rejection based on its test results with respect thereto. If the Client does not give notice of rejection within the Acceptance Period, the Work Product will be deemed accepted.
Payment terms: Except as otherwise provided in the Statement of Work, fees for Services shall be invoiced on or before the last day of the month in which the Services are provided. Fees for Services shall be due and payable net fifteen (15) days after the date of the invoice. Disbursements by Company of costs or expenses on behalf of the Client (if any) will be charged as they are incurred (plus a 10% handling fee) and invoiced in the Services Invoice for the month in which the disbursements are paid. Company will receive written Client authorization prior to incurring any cost or expenses on behalf of the Client. The invoiced amounts for fees and charges exclude sales, franchise, excise and similar taxes. Any such taxes shall be the sole and exclusive responsibility of the Client. In the event Company is required or agrees, to pay any such taxes on behalf of the Client, such payment shall be invoiced and paid as a disbursement pursuant to this paragraph. Payments not received by the Company within three (3) days after the due date thereof shall be subject to the imposition of a one-time late payment charge of Twenty-five Dollars ($25) and shall further bear interest from the due date at 0.1% of invoice amount daily.
Inventions: Client acknowledges and agrees that Company shall own the entire worldwide right, title, and interest, including without limitation, the exclusive and perpetual patent and/or copyright as the case may be, in and to any and all inventions, know-how, trade secrets, works subject to copyright, discoveries, developments and innovations created and/or conceived by Company and utilized by Company in rendering Services to the Client (the “Company Intellectual Property"), together with the exclusive right to obtain and hold in its own name any registrations and any other such protection and any extensions or renewals thereof; provided, Company acknowledges and agrees that it shall not own any interest in or to content provided by or on behalf of Client for use in, or in connection with, the Services. It is specifically agreed and understood that for all purposes of the United States Copyright Act, the Work Product shall not be deemed to have been performed for Client as a "work made for hire," Company hereby grants to Client a non-exclusive, non- transferable, limited license, revocable at will by Company, to use the Company Intellectual Property pursuant to the terms and conditions of this Agreement. The client may only make such copies of the Company Intellectual Property as may be necessary for archival purposes. Except for the limited license set forth
in this Section, Company expressly reserves all other rights in and to the Company Intellectual Property. Client hereby grants to Company a non-exclusive, non-transferable, limited license, revocable at will by Client, to use the Client Content pursuant to the terms and conditions of this Agreement. Company may only make such copies of the Client Content as may be necessary for the performance of the Services.
Except for the limited license set forth in this Section, Client expressly reserves all other rights in and to the Client Content.
Conflicts of Interest; Non-hire Provision: For a period of six months following any
termination of this Agreement, for any reason or for no reason, neither Company nor
the Client shall, directly or indirectly, fire, engage, solicit, or encourage to leave the
other’s employment or engagement, any employee or consultant.
Successors and Assigns: AII of the provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs, if any, successors, and permitted assigns.
Choice of Law: This Agreement shall be interpreted and other relations of the Parties not regulated herein shall be governed in accordance with the laws of the Republic of
Arbitration; Forum Selection and Venue: In case of disputes and disaccords
relating to the present Agreement the Parties shall undertake all possible legal measures for the settlement of such disputes through negotiations. If the dispute is not settled in the course of 30 (thirty) calendar days from the date of its genesis, which shall be considered the date of sending a notification letter by one Party to another, then each Party shall be entitled to the right to apply to the courts of the Delaware, US for the settlement of the dispute in line with the US legislation.
Waiver: Waiver by one party hereto of breach of any provision of this Agreement by the other shall not operate or be construed as a continuing waiver. Assignment: Neither party shall assign any rights or delegate any obligations under this Agreement, without the prior written consent of the other.
Term: The Term of this Agreement shall commence upon execution of the Statement
of Work and shall continue in full force until the Services are completed or the Agreement is sooner terminated according to its terms. Notwithstanding, either party may terminate this Agreement at any time, for any reason, with thirty (30) days written notice.
Attorney’s Fees: If either party prevails in any action, arbitration, mediation or other proceeding or forum in which that party seeks relief from the other party to this Agreement, the non-prevailing party shall, immediately upon written demand by the prevailing party, pay to the prevailing party an amount equal to the aggregate of the prevailing party ‘s costs of obtaining such relief, including, without limitation, reasonable attorneys' fees.
Amendment: The Agreement may not be amended or modified except by written Modification Order executed by both parties. Unless expressly agreed by the parties, electronic communications shall not constitute writings for the purposes of this paragraph. Except as expressly amended by Modification Order, the Agreement shaft
continues in full force and effect. AII changes shall be evidenced by an executed Modification Order referencing the original Agreement. If adjustments to compensation are required, they shall be stated in the Modification Order. Until a Modification Order is executed by both parties, Company shall have no obligation to provide additional Services or to refrain from providing Service provided for in this Agreement. Until a Modification Order is executed by both parties, Client shall not be obligated to pay for any Services not provided for in this Agreement and shall not be relieved of the obligation to pay for Services provided for in this Agreement.
Limitation of liability: the parties acknowledge and agree that neither party nor any of its agents or personnel will be liable (whether in tort (including negligence), contract, equity or otherwise) for any loss or damage whatsoever to the other party or any other person, arising from the provision of services and materials or client content, other than as a direct result of any gross negligence, bad faith or willful default by the other party or any of its agents or personnel, in which case that party's liability shall be limited (subject as set out below) to the direct and foreseeable consequences of such negligence, bad faith or willful default and shall not extend to any indirect or consequential losses, or loss of profits or anticipated savings, even if advised of the likelihood of such damages. Company’s total aggregate liability in respect of any and all claims, whether in contract, tort (including negligence), equity or otherwise, under or in respect of this agreement and/or the services or materials supplied by the company, shall not exceed the amount of the charges payable under this agreement for the three months immediately prior to the event giving rise to such liability.
Entire Agreement: This Agreement, and each Modification Order when signed by both parties, shall constitute the final, complete, entire and integrated agreement and the contract between Company and Client with respect to the matters referred to therein, and shall supersede and replace all previous proposals and/or agreements, whether oral or written between the parties.
Force Majeure: Neither party will be liable for any act, omission, or failure to fulfil its obligations (other than to pay money) under this agreement arising from any cause reasonably beyond its control, including without limitation acts of God, strikes, lockouts, riots, acts of war, acts of terror or terrorism, epidemics, governmental action after the date of this agreement, fire, communication line failures, power failures, earthquakes or other disasters ("Force Majeure").
The party unable to perform due to Force Majeure will immediately:
* notify the other in writing of the reasons for its failure to fulfil its obligations and the effect of such failure;
* use all reasonable endeavours to avoid or remove the cause and perform its obligations, and will promptly perform its obligations upon abatement of the Force Majeure.
indemnification: (a) Client shall release, indemnify, defend and hold harmless Company, ( including officers, directors, agents, employees and associates of Company) from and against any and all losses, costs, claims, suits, obligations, demands, damages, liabilities, costs of settlement, judgments, expenses and reasonable attorney and paralegal fees on account .thereof resulting from or in connection with any injuries to the person or property of Client‘s personnel, including its employees and contractors, performing services pursuant to this Agreement or any negligent or willful act by Client causing damage to Company. The parties agree that Client personnel, including its employees and contractors, are the responsibility of Client and in no event shall such personnel be considered the employees or contractors of Company for any purpose.
(b)Client shall release, indemnify, defend and hold harmless Company, (including
officers, directors, agents, employees and associates of Company) from and against any and all losses, costs, claims, suits, obligations, demands, damages, liabilities, costs of settlement, judgments, expenses and reasonable attorney and paralegal fees on account thereof resulting from or in connection with claims against Company for violations of trade secrets, proprietary information, trademark, copyright or any patent rights relating to the use, adaptation, distribution, copying, reproduction, display or any other utilization, implementation or practice of (i) information, documents or other materials furnished to Company by Client or (ii) the Work Product by Company or its authorized agents.
(c)If a third party receives a judgment from a court of competent jurisdiction upholding claims against Company or its officers, directors, agents, employees and associates for violations of trade secrets, proprietary information, trademark, copyright or any patent rights resulting from use, adaptation, distribution, copying, reproduction, display or any other utilization, implementation or practice of the of (i) information, documents or other materials furnished to Company by Client or (ii) the Work Product by Company or its authorized agents, Client shall, in addition to its obligations under paragraph (b) above, within fifteen (15) days after entry of the judgment, modify the information, documents or other materials furnished to Company by Client or (ii) the Work Product to avoid the infringement without eliminating the functional and
performance capabilities of the Work Product or the documentation (as the case may be).
Confidentiality: For the purposes of this Agreement “Confidential Information" means all information marked as confidential or proprietary or similar legend or which in all of the circumstances is clearly intended to be treated as confidential (whether disclosed in writing, verbally or by any other means and whether directly or indirectly) including, without limitation, the subject matter of this Agreement, data, technical and other information, know-how, formulae, specifications, design rights, and any information relating to the operations, processes, plans or intentions, product information, trade secrets, market opportunities and business affairs and any information expressly agreed to be Confidential Information in any other provision of this Agreement;
During the term of this Agreement and for a period of 3 (three) years from the expiration or termination of this Agreement, a receiving Party shall (i) not disclose Confidential Information to any third party; (ii) restrict disclosure of Confidential Information to only those employees, agents or consultants of the receiving Party and affiliates, if any of the receiving Party who must be directly involved with the Confidential Information for the purposes of this Agreement and who are bound by confidentiality terms substantially similar to those in this Agreement; (iii) not reverse engineer, decompile or disassemble any Confidential Information for source discovery or other purposes; (iv) use the same degree of care as for its own information of like importance, but at least the care of a prudent businessman, in safeguarding against disclosure of Confidential Information; and (v) promptly notify the disclosing Party upon discovery of any unauthorized use or disclosure of the Confidential Information and take reasonable steps to regain possession of the Confidential Information and prevent further unauthorized actions or other breach of this Agreement.
The disclosing party consents to the disclosure of the Confidential Information to the extent strictly necessary for informing any subcontractors or suppliers
of other Party who need to know such limited information in order to perform any assignments or handle any orders of a Party pursuant to this Agreement provided however that such subcontractors or suppliers shall first have agreed with the other Party to be bound by its confidentiality obligations hereunder or obligations which protect the Information to the extent protected hereunder in respect of such limited Confidential Information they will receive including appropriate obligations not to disclose the same to others and not to use it for other purposes as well as to return all such information to the Party upon completion of their assignment or other required performances.
The foregoing restrictions on use and disclosure of the Confidential Information do not apply to information that;
is in the possession of the receiving Party at the time of its disclosure and is not otherwise subject to obligations of confidentiality;
or becomes publicly known, through no wrongful act or omission of the receiving Party;
or is received without restriction from a third party free to disclose it without obligation to the disclosing party;
or is developed independently by the receiving party without reference to the Confidential Information;
or is required to be disclosed by the law, regulation, or court or governmental order, provided that the party subject to such law, regulation or court or governmental order shall use reasonable efforts to minimize such disclosure and shall notify the other party contemporaneously of such disclosure and provide the copy of such order or legal act to the opposite Party.