YOU AGREE THAT BY PLACING AN ORDER THROUGH AN ORDERING DOCUMENT, STATEMENT OF WORK OR OTHER ORDERING VEHICLE (THE “ORDERING DOCUMENT”) THAT INCORPORATES THESE GENERAL TERMS, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT AND THESE GENERAL TERMS. IN SUCH A CASE, IF YOU ARE PLACING SUCH AN ORDER ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THE ORDERING DOCUMENT AND THESE GENERAL TERMS AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THESE GENERAL TERMS SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU OR SUCH ENTITY DO NOT AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THE ORDERING DOCUMENT AND THESE GENERAL TERMS, YOU SHALL NOT PLACE AN ORDER OR USE PRODUCTS OR SERVICES OFFERINGS.
These General Terms (“Agreement”) are between EvonSys, Inc. (“Company”) and the individual or entity (“Customer”) that has executed the order that incorporates these General Terms by reference. In placing an order subject to these General Terms, you agree that the Schedules (as defined below) attached to these General Terms are incorporated into these General Terms. If a term is relevant only to a specific Schedule, that term applies only to that Schedule when that Schedule is incorporated into these General Terms.
Contracted Services. This Agreement shall apply to the scope of goods and services described in the Ordering Document by and between the Company and Customer. Any such executed Ordering Document shall be incorporated herein by reference (the services and functions described in any Ordering Document are hereafter referred to as the “Services”). In the event that the scope of the Services is expanded, revised, or modified for any Ordering Document incorporated herein, the parties shall prepare and sign an amended or new Ordering Document (or change order), which likewise shall be attached hereto and incorporated herein by reference.
Term of Agreement.
- Services shall be provided for the Services Period defined within Your Ordering Document.
- The Ordering Document termination clause will control the right to terminate this Agreement for that specific Ordering Document only.
- Termination rights can be found within the Termination section of this Agreement.
Fees and Payment Terms.
- In exchange for the Services performed by Company, Customer agrees to compensate Company at the rates identified in the fee schedule outlined in an Ordering Document. Such rates are exclusive of any federal, state, or local sales, use taxes, or other taxes or fees assessed on or in connection with any of the Services rendered herein. The Customer will pay all undisputed invoices within fifteen (15) days of receipt thereof.
- In addition, Customer shall reimburse Company for any out-of-pocket expenses as reasonably incurred by Company in connection with the performance of services rendered. Additional fees for materials, services, training, and hardware may only be incurred by the Company and charged to the Customer if prior written approval has been obtained.
- A late charge of one and one-half percent (1½%) per month, or the legal maximum if less, shall accrue on past due billings unless the Customer notifies the Company of a billing dispute in writing prior to the payment due date.
- Customer shall be responsible for any costs incurred by the Company to collect unpaid invoices including, but not limited to, collection and filing costs and reasonable attorney's fees of not less than fifteen percent (15%) of the outstanding balance due.
Change Orders or Out of Scope Services. To the extent that Customer requires or requests additional services or services that exceed the Services outlined in any Ordering Document incorporated herein, Company and Customer will execute a new Ordering Document describing the additional services or out of scope work and the fees associated thereto. Once both parties sign the Ordering Document, it will be incorporated into the Agreement.
Ownership of Materials Related to Services. The parties agree that any materials prepared and delivered by Company in the course of providing the Services shall be considered works made for hire. All rights, title, and interests of such materials shall be and are assigned to Customer as its sole and exclusive property. Notwithstanding the foregoing, the parties recognize that performance of Company hereunder will require the skills of Company and, therefore, Company shall retain the right to use, without fee and without permission of Customer, for any purpose, such "know-how", ideas, techniques and concepts used or developed by Company in the course of performance of the services of this Agreement.
Independent Contractor. The parties enter into this Agreement as independent contractors. Nothing within this Agreement shall be construed to create a joint venture, partnership, agency, or other employment relationship between the parties. All Company employees who are assigned to perform services at any Customer owned or leased facility shall be considered to be an employee of Company only and will not be considered an agent or employee of Customer for any purpose. Company will be solely responsible for payment of all compensation owed to its employees, including all applicable federal, state, and local employment taxes and will make deductions for all taxes and withholdings required by law. In no event will any Company employee be eligible for or entitled to any benefits of Customer.
Confidential Information.
- Customer understands and acknowledges that Company may, from time to time, disclose “Confidential Information” to Customer. For purposes of this Agreement, the term “Confidential Information” shall include but not be limited to any nonpublic and/or proprietary information or materials relating to Company’s promotional and/or marketing strategy and activity, Company’s pricing information (including but not limited to rates, margins, and budgets), Company’s financial and budget information, Company’s customer lists, information about the education, background, experience, and/or skills possessed by Company employees, Company employee compensation information, Company’s service and/or sales concepts, Company’s service and/or sales methodology, Company’s service and/or sales techniques, Company’s customer satisfaction data or sales information, or any information which Company marks or identifies as "confidential" at the time of disclosure or confirms in writing as confidential within a reasonable time (not to exceed thirty (30) days) after disclosure. Customer will not disclose Company’s Confidential Information to any third party at any time without the prior written consent of Company and shall take reasonable measures to prevent any unauthorized disclosure by its employees, agents, contractors, or consultants. Further, Company’s Confidential Information shall include the terms set forth in this Agreement, all of which shall remain the property of Company and shall in no event be transferred, conveyed, or assigned to Customer as a result of the services provided pursuant to this Agreement. The foregoing duty shall survive any termination or expiration of this Agreement.
- Company also understands and acknowledges that Customer may, from time to time, disclose to Company proprietary ideas, concepts, expertise, and technologies developed by Customer relating to computer application programming, installation, and operation (collectively “Customer’s Confidential Information”). Customer may further provide to Company documentation, reports, memoranda, notes, drawings, plans, papers, recordings, data, designs, materials, or other forms of records or information relating to Customer’s business operations (collectively “Confidential Trade Information”). Company agrees (i) not to use any Customer Confidential Information or Confidential Trade Information for its own use or for any purpose other than the specific purpose of completing the Services; (ii) not to voluntarily disclose any Customer Confidential Information or Confidential Trade Information to any other person or entity; and (iii) to take all reasonable measures to protect the secrecy of, and avoid disclosure or use of, Customer Confidential Information and/or Confidential Trade Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have such Customer Confidential Information and/or Confidential Trade Information. The foregoing duty shall survive any termination or expiration of this Agreement.
- In no event shall Customer use Company’s Confidential Information to reverse engineer or otherwise develop products or services functionally equivalent to the products or services of the Owner.
- The following shall not be considered Confidential Information for purposes of this Agreement:(a) Information which is or becomes in the public domain through no fault or act of the receiving party;(b)Information which was independently developed by the receiving party without the use of or reliance on the disclosing party’s Confidential Information;(c)Information which was provided to the receiving party by a third party under no duty of confidentiality to the disclosing party; or (d) Information which is required to be disclosed by law with no further obligation of confidentiality, provided, however, prompt prior notice thereof shall be given to the party whose Confidential Information is involved.
- The parties agree that the disclosure of any of the foregoing Confidential Information by either party shall give rise to irreparable injury to the owner of the Confidential Information, inadequately compensable in monetary damages. Accordingly, the nondisclosing party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available.
Nonsolicitation of Employees. Customer will not, either directly or indirectly (except through Company) solicit, hire, or contract with any Company employee during the term of this Agreement and for a one (1) year period following termination thereof (hereafter the "Nonsolicitation Term"). In the event that Customer desires to directly hire any Company employee during the Nonsolicitation Term, Customer must first seek Company’s consent to directly hire the employee and to speak with the Company employee about the employment opportunity. In the event that Company grants Customer the option to directly hire a Company employee, and the Company employee accepts an offer of employment from Customer, the parties shall discuss issues related to the employee's transition to Customer. The employee's start date will be mutually agreed upon by Customer and Company in writing. Provided the parties agree to the Company employee’s transition terms, Customer shall pay Company a placement fee of no less than 20% of offered salary prior to the Company employee commencing work as an employee of Customer. Unless the parties agree otherwise, Customer shall not directly hire more than two Company employees during the Nonsolicitation Term. If Customer hires a Company employee without first obtaining the consent of Company, Customer shall pay Company a liquidated damage equal to 100% of the employee’s fair market salary, as determined by Company in its sole discretion. This provision is considered a material term that allows for accelerated termination rights under paragraph 14 of this Agreement.
Customer Responsibilities. In addition to any obligations and responsibilities described in the Ordering Document or elsewhere in this Agreement, Customer shall have shared responsibility with Company regarding the following:
a) To ensure that the necessary business and application knowledge is available and conveyed from the Customer’s existing support team to Company’s support team.b) Provide ready access to all appropriate computing platforms, documentation (e.g., program source, copybooks, tables, subroutines) and personnel (i.e., end users and technical representatives) necessary to fully understand the current business systems and environments throughout the life of the engagement.
c) Provide at its facility, office space and equipment for Company’s on-site employees. Access will also be provided to the Customer’s source libraries, test systems, and test data.
d) Provide external communications capability and/or access to its work facility to enable Company’s on-site project team to access the Customer’s information technology system for after hours or weekend Services as required.
e) Customer shall assign an employee or representative to be present at the work facility for any after hours or weekend Services provided by Company. In the event that Customer declines or fails to assign an employee or representative to be present during such hours, Customer waives any and all claims for any property damage or loss that occurs during such time that Company’s employee(s) is on the Customer’s work facility.
f) Provide passwords and job numbers to Company employees as needed.
Warranty of Services. Any warranty offered by Company for Services provided herein shall be set forth in the Ordering Document. In the absence of any warranty language in the Ordering Document, Company warrants that all Services performed pursuant to this Agreement will be performed in accordance with the general standards and practices of the information technology industry in existence at the time the Services are being performed. IN THE EVENT THAT THERE IS NO WARRANTY SET FORTH IN THE Ordering Document, THE FOREGOING EXPRESS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED, ORAL OR WRITTEN, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE TO THE EXTENT APPLICABLE.
Limitation of Liability. Customer agrees that Company shall not be liable to Customer, or any third party, for (1) any liability claims, loss, damages or expense of any kind arising directly or indirectly out of services provided herein for (2) any incidental or consequential damages, however caused, and Customer agrees to indemnify and hold Company harmless against such liabilities, claims, losses, damages (consequential or otherwise) or expenses, or actions in respect thereof, asserted or brought against Company by or in right of third parties or for (3) any punitive damages. For purposes of this Agreement, incidental or consequential damages shall include, but not be limited to, loss of anticipated revenues, income, profits or savings; loss of or damage to business reputation or good will; loss of Customers; loss of business or financial opportunity; or any other indirect or special damages of any kind categorized as consequential or incidental damages under the law of the State of Delaware. Company’s liability for any damages hereunder shall in no event exceed the amount of fees paid by Customer to Company as of the date the alleged damages were incurred.
Indemnification. To the extent limited by applicable law, the parties agree to indemnify and hold harmless the other party, and any of its affiliates or subsidiaries, and all of its directors, officers, agents, contractors, volunteers and employees, from any and all claims or liabilities, including, but not limited to, injury, death and/or damage to property, which may arise from the indemnifying parties’ performance of this Agreement, except to the extent that such claims or liabilities arise from the gross negligence or willful action or inaction of the other indemnified party or its affiliates or subsidiaries..
Equal Opportunity Employer. Company is an Equal Opportunity Employer and does not discriminate in recruitment, hiring, transfer, promotion, compensation, development, and termination of its employees on the basis of race, color, sex, age, marital status, national origin, handicap, religious beliefs, veteran's status or other protected category as required by applicable Federal, State and local laws. Customer likewise represents that it will not discriminate in the referral or acceptance of consultants hereunder on the basis of race, color, sex, age, marital status, national origin, handicap, religious beliefs, veteran's status or other protected category as required by applicable federal, state and local laws.
Termination
a) Termination for Cause: If either party believes that the other party has failed in any material respect to perform its obligations under this Agreement (including any Exhibits or Amendments hereto), then that party may provide written notice to the other party’s management representative describing the alleged failure in reasonable detail. If the alleged failure relates to a failure to pay any sum due and owing under this Agreement or if Customer makes an unauthorized solicitation of a Company employee under the provisions of paragraph eight (8) herein, the breaching party shall have ten (10) business days after notice of such failure to cure the breach. If the breaching party fails to cure within ten (10) business days, then the non-breaching party may immediately terminate this Agreement, in whole or in part, for cause by providing written notice to the management representative of the breaching party. With respect to all other defaults, if the breaching party does not, within thirty (30) calendar days after receiving such written notice, either (a) cure the material failure or (b) if the breach is not one that can reasonably be cured within thirty (30) calendar days, then the non-breaching party may terminate this Agreement, in whole or in part, for cause by providing written notice to the management representative of the breaching party.b) Termination for Bankruptcy: Either party shall have the immediate right to terminate this Agreement, by providing written notice to the other party, in the event that (i) the other party becomes insolvent, enters into receivership, is the subject of a voluntary or involuntary bankruptcy proceeding, or makes an assignment for the benefit of creditors; or (ii) a substantial part of the other party’s property becomes subject to any levy, seizure, assignment or sale for or by any creditor or government agency.
c) Payments Due: The termination of this Agreement shall not release either party from the obligation to make payment of all amounts then or thereafter due and payable. d) Permitted Delays: Company shall be excused from performance if prevented from performing any services pursuant hereto in whole or in part, as a result of delays caused by the other party or an act of God, or other cause beyond its reasonable control and which it could not have prevented by reasonable precautions and such nonperformance shall not be a default hereunder or a ground for termination hereof. Company’s time of performance shall be enlarged, if and to the extent reasonably necessary.
e) Continuation of Services: Company will continue to perform Services during the notice period unless otherwise mutually agreed upon by the parties in writing. In the event that Customer provides the notice of termination and directs Company not to perform the services through the
notice period, Customer agrees to pay Company an amount equal to the amount normally due to Company for the notice period. Upon termination by either party, Customer will pay Company for all services performed and charges and expenses reasonably incurred by Company in connection with the services provided under this Agreement through the date of termination.
Miscellaneous Clauses:
a) Non-Restrictive Relationship. Company may provide the same or similar services to other customers.b) Waiver. The rights and remedies provided to each of the parties herein shall be cumulative and in addition to any other rights and remedies provided by law or otherwise. Any failure in the exercise by either party of its right to terminate this Agreement or to enforce any provision of this Agreement for default or violation by the other party shall not prejudice such party’s rights of termination or enforcement for any further or other’s default or violation or be deemed a waiver or forfeiture of those rights.
c) Force Majeure. Company will not be liable to Customer for failure to perform its obligations hereunder if, and to the extent, that such failure to perform is caused by events beyond the control of Company, including but not limited to: strikes, lockouts, or other industrial disturbances; civil disturbances; fires; acts of God; acts of a public enemy; compliance with any regulations, order, or requirement of any governmental body or agency; or inability to obtain transportation or necessary materials in the open market.
d) Notices. All notices required under or regarding this Agreement will be in writing and will be considered if delivered personally, mailed via registered or certified mail (return receipt requested and postage prepaid), given by facsimile (confirmed by certification of receipt) or sent by courier (confirmed by receipt) addressed to the following designated parties:
EvonSys Inc.
Attention: Dominic J. Balascio, Esquire
Parkway Law LLC
3171 DuPont Parkway, Suite B, P.O. Box 1016
Middletown, DE 19709With a copy to:
EvonSys Inc.
4550 New Linden Hill Road, Suite 104
Wilmington DE 19808
e) Severability. If any term or provision of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement will not be affected.
f) Captions. The section headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.
g) Entire Agreement. This Agreement and the Ordering Document(s) and/or Change Order(s) incorporated herein constitute the entire agreement between the parties and supersede any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written, regarding the subject matter of this Agreement.
h) Amendments. This Agreement and the Exhibits may be amended only by an instrument in writing executed by the parties hereto.
i) Applicable Law. This Agreement is made under and will be construed in accordance with the law of Delaware without giving effect to that state's choice of law rules. The forum for any dispute or litigation arising out of this Agreement shall be in the appropriate Delaware Court.
j) Successors and Third Party Beneficiaries. This Agreement shall inure to the benefit of Company and Customer and any successors or assigns of Company and Customer. No third party shall have any rights hereunder.
Electronic Transmission. This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (i) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or (ii) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.
Contact Information. If Customer has any questions about this Agreement, Services, or Products User may contact EvonSys at info@evonsys.com.
