As a tech startup, Buyer sought a right long-term partner who could understand the challenging startup scenario. Its key objective was to achieve optimum quality within limited resources. Since Buyer's product is based on a niche technology, finding the right implementation partner posed a stiff challenge.
Founded in Silicon Valley, Buyer is a new-age technology startup offering advanced data analytics and digital engineering solutions. Buyer is a leading brand and a Nasdaq listed company offering stolen vehicle recovery and other innovative fleet telematics services.
At ITeXchange, we leveraged our industry experience and understanding of the US start-up scenario to build an outsourced IT team for Buyer, best suited per their requirements. We provided an agile, collaborative ecosystem required by a tech start-up.
Seven popular Web Application Development Frameworks
Modern DevOps for Software Quality and Automation
Mean Stack: Why go Mean?
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The role of CIOs in fostering an agile and innovative DevOps culture
The ITeXchange service provider network is exclusive and by-invite. There is no cost to get on-board;
if you are competent in your areas of focus, then you are welcome. As a part of this exclusive network you:
No obligation quotes in 48 hours. Teams setup within one week.
Build a team leveraging certified companies (not freelancers) based on outsourcing advice from industry experts.
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EVALUATION
By completing and sending us your response to the -information request form in a full and accurate manner (“Response”) and executing the Service Provider Agreement, you are stating that you want to participate in the ITeXchange service provider evaluation program (“Evaluation Program”) and you agree to participate fully and properly in every step of the Evaluation Program. If you represent a company that is interested in providing Services you shall be considered as a “Service Provider”.
The Evaluation Program has three stages as set forth below. At each stage, we will make a determination, in our sole and absolute discretion, whether you meet the criteria we have established that potential Service Providers must meet in order to progress to the next stage of the Evaluation Program or, at the conclusion of the Evaluation Program, whether you meet the criteria to be enrolled as a Service Provider (the “Service Provider Standards”). -
You must provide us with full and accurate information for each information request we make during the Evaluation Program. If you want to ensure that the information you provide to us states exactly what you want it to say, we encourage you to provide it us in writing, even if you originally provided it to us orally.
If we visit your offices as part of an Evaluation Program, you will provide our representatives with the appropriate level of access in order for them to complete their part of the evaluation. Here is a non-exhaustive list of the types of access they will require for their evaluation:
Results of Potential Service Provider Evaluation
As stated above, following the completion of our Detailed Evaluation, we will notify you whether or not you have qualified to be enrolled as a Service Provider on ITeXchange. If you have not qualified, we will provide a brief report that gives you feedback on the key issues that prevented you from being enrolled. If you qualify to enroll, we inform you of the fact together with your industry and/or domain specific rating.
Your ITeXchange rating that was mentioned above will be one of Excellent; Very Good; Good; or Satisfactory for each such industry and/or domain. This rating is very important and will be based on the quality of the information you provide us and our findings during the due diligence process. Hence, it is in your interest that you provide us with high quality information which is true and accurate in all respects.
Once you have been enrolled as a Service Provider, we will add you to our list of approved Service Providers for specific industry and technology domains. You will:
Provide case studies, white papers and/or client testimonials that demonstrate your capabilities with respect each domain for which you have been selected.
There are a few matters that you need to pay attention to while providing these materials. The first is that these materials are optional and not compulsory. Secondly, you must have the proper rights to publish everything that you put on ITeXchange. Thirdly and very importantly, you must ensure that everything you publish on your web page is correct and accurate and must confine itself to descriptions of your business and services. Fourthly, you cannot use this web page to say anything about anyone or anything else or to direct the readers to online or offline resources or materials outside ITeXchange. Fifthly, you cannot use the ITeXchange website to denigrate others or to publish any materials that are, in our sole discretion, negative, misleading, slanderous, libelous, rude, impolite, pornographic or otherwise objectionable. We will not take any responsibility for determining whether or not the information you provide is correct and accurate. Further, under no circumstances can you publish any materials on ITeXchange that in any form or manner violate or breach any third party’s Intellectual Property rights. This means that if you are including any third party Intellectual Property, you must have the proper permission of that third party to publish such materials. For example, if you are publishing a case study of a project you implemented for a client, please ensure that you have the client’s permission to use their name and to describe the work you do for them. If we determine, in our sole discretion, that any materials you publish violate any of our standards, we will remove the materials from all ITeXchange resources without any notice to you. The same will apply if we receive a duly substantiated complaint from a third party. Intellectual property and other proprietary rights (“Intellectual Property”) will have the broadest possible meaning for the purpose of the Service Provider Agreement and includes, without limitation, all patent rights; copyrights, moral rights and all other rights associated with works of authorship; trademarks; rights relating to the protection of trade secrets and confidential information; and any right similar to those described here.
Your ITeXchange rating is a dynamic rating. The preliminary rating will be modified based on (i) our continuing evaluation of your capabilities outside of ITeXchange; and (ii) our observations and feedback from buyers on ITeXchange with respect to projects for which you were chosen to deliver through ITeXchange. Since the rating is dynamic, it can go both ways, i.e., you could move upwards from good to very good to excellent or from excellent to very good to good.
If the results of an evaluation indicate that you are failing to maintain the Service Provider Standards, we will restrict your ability to bid for projects while we discuss with you the steps you plan to take to improve your capabilities to bring them back to the levels required by the Service Provider Standard. Your plan must include a definitive timeline within which you will achieve the objectives. Once we approve of the plan, we will monitor your progress against the plan’s objectives and milestones. Your ability to bid for new projects will be re-instated once the plan objectives are achieved to our reasonable satisfaction in accordance with the agreed timelines. If we determine that you have failed to achieve the plan objectives in accordance with the timelines we may, in our sole and absolute discretion, either extend the time available to you to meet the plan objectives or terminate your enrolment as a Service Provider on ITeXchange. No Service Provider shall be entitled to more than two extensions to satisfy the remedial plan’s objectives.
If your Service Provider enrolment is terminated, you have to wait for a minimum period of six months before you can re-apply to be enrolled as a Service Provider. The re-enrolment process is the same as the initial enrolment process described above
Selling Services on ITeXchange:
Any person, company or other organization or entity which is interested in using ITeXchange to procure one or more of the information technology services that service providers offer on ITeXchange is termed a “Buyer”. If you represent a company that is interested in providing Services you shall be considered as a “Service Provider”. Once a Buyer informs us that they have an information technology project (“Proposed Project”) for which they want proposals from Service Providers, we will work with the Buyer till we are satisfied that we have enough details about the Proposed Project to publish a set of specifications on ITeXchange. We will also select a group of Service Providers from the eligible pool of all Service Providers who have the industry and technology domain capabilities needed. Only those Service Providers who are shortlisted by us will be allowed to view the Proposed Project specifications.
Once we notify the shortlisted Service Providers about the Proposed Project, each such Service Provider will be allowed to review the applicable specifications and seek further details and clarifications. If you are shortlisted for a Proposed Project, you will have a set time frame within which to seek all of the clarifications that you want from us. The clarification period will vary from Proposed Project to Proposed Project depending on the Buyer’s project timelines and the complexity of the Proposed Project. Please note the Buyer name and other contact details will not be revealed to the Service Provider until such time that the Service Provider’s proposal has been accepted by the Buyer and contracting discussions have been initiated.
After the expiry of the clarification period, each shortlisted Service Provider will have to either notify us of their intention not to bid for the Proposed Project or prepare and submit a fully responsive proposal within the period allotted for submission of proposals.
Each Proposal that is submitted will be reviewed by us. We will provide you with an opportunity to walkthrough your proposal with us so that it is evaluated in an informed manner. As part of the evaluation process, you must provide us with timely and appropriate clarifications so that we have the information we need about your proposal when we need it.
The Proposal would be submitted by the Service Provider in a format provided by the ITeXchange or that is available on the ITeXchange website. Please note the Service Provider name and other contact details will not be revealed to the Buyer until such time that the Service Provider’s Proposal has been accepted and contracting discussions have been initiated.
We can reject any Proposal at any stage of the evaluation if we feel that the proposal does not meet the Buyer’s specifications or that the terms of the proposal do not meet the Buyer’s expectations in this regard. We can also reject Proposals if we reasonably believe that there is anything about the Proposal or your conduct that is unethical, fraudulent, deceptive, misleading, is analogous to cartelization or otherwise hindering the proper functioning of the ITeXchange marketplace or otherwise not acceptable as a good business practice. If your Proposal is rejected, we will provide you with a reasonable amount of details on why your Proposal was rejected.
OUR ABILITY TO REJECT PROPOSALS AT ANY STAGE ACTING ON BEHALF OF A BUYER OR IN OUR CAPACITY IS A KEY CONDITION TO ALLOWING YOU TO ENROL AS A SERVICE PROVIDER AND SUBMIT PROPOSALS. BY ENROLING AS A SERVICE PROVIDER WITH ITeXchange YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE SPECIFICALLY STUDIED THIS REQUIREMENT AND ACCEPT IT WITHOUT ANY RESERVATIONS WHATSOEVER.
The Service Provider whose Proposal is finally selected will then enter into discussions on the commercial and other terms which need to be discussed and agreed upon ITeXchange. Once the details have been agreed upon, Service Provider will submit all of the agreed details, including final specifications, commercial terms and the respective rights and remedies of each party on the ITeXchange Portal and this will be designated as a live project (“Project”)ITeXchange.
Delivering a Project:
If you are a selected Service Provider, you must comply with the following requirements at the appropriate stage of the Project's lifecycle:
If a change request is raised for additional features, interfaces or functionalities or requires modification to agreed functionality ("Change Request"), you must:
We will actively solicit feedback from both the Buyer and you during the Project implementation process and upon completion of the Project. Our assessment of the feedback will be reflected in your ITeXchange rating.
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Service Provider raises the invoice to ITeXchange on the ITeXchange platform
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ITeXchange reviews the Service Provider invoice and sends the ITeXchange invoice to the Buyer
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Buyer reviews & approves ITeXchange invoice on the ITeXchange platform
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Buyer transfers fund into ITeXchange US Bank account
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ITeXchange transfers funds to the Service Provider in USD
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*All financial information of the project is available to view on the ITeXchange platform including
ITeXchange invoices, Service Provider invoices and credit/ debit notes.
Selling Services on ITeXchange
Any person, company or other organization or entity which is interested in using ITeXchange to procure one or more of the information technology services that service providers offer on ITeXchange is termed a “Buyer”. If you represent a company that is interested in providing Services you shall be considered as a “Service Provider”. Once a Buyer contacts us that they have an information technology project (“Proposed Project”) for which they want proposals from Service Providers, we will work with the Buyer till we are satisfied that we have enough details about the Proposed Project to publish a set of specifications on ITeXchange. We will also select a group of Service Providers from the eligible pool of all Service Providers who have the industry and technology domain capabilities needed. Only those Service Providers who are shortlisted by us will be allowed to view the Proposed Project specifications
Once we notify the shortlisted Service Providers about the Proposed Project, each such Service Provider will be allowed to review the applicable specifications and seek further details and clarifications. If you are shortlisted for a Proposed Project, you will have a set time frame within which to seek all of the clarifications that you want from us. The clarification period will vary from Proposed Project to Proposed Project depending on the Buyer's project timelines and the complexity of the Proposed Project. Please note the Buyer name and other contact details will not be revealed to the Service Provider until such time that the Service Provider's proposal has been accepted by the Buyer and contracting discussions have been initiated.
After the expiry of the clarification period, each shortlisted Service Provider will have to either notify us of their intention not to bid for the Proposed Project or prepare and submit a fully responsive proposal within the period allotted for submission of proposals.
Each Proposal that is submitted will be reviewed both by the Buyer and us . We will provide you with an opportunity to review your proposal with the Buyer and us so that it is evaluated in an informed manner. As part of the evaluation process, you must provide the Buyer and us with timely and appropriate clarifications so that we have the information we need about your proposal.
The Proposal would be submitted by the Service Provider in a format provided by the ITeXchange or that is available on the ITeXchange website. Please note the Service Provider name and other contact details will not be revealed to the Buyer until such time that the Service Provider’s Proposal has been accepted by the Buyer and contracting discussions have been initiated.
The Buyer and/or we can reject any Proposal at any stage of the evaluation if either of us feel that the proposal does not meet the Buyer’s specifications or that the terms of the proposal do not meet the Buyer’s expectations in this regard. We can also reject Proposals if the Buyer or we reasonably believe that there is anything about the Proposal or your conduct that is unethical, fraudulent, deceptive, misleading, is analogous to cartelization or otherwise hindering the proper functioning of the ITeXchange marketplace or otherwise not acceptable as a good business practice. If your Proposal is rejected, we will provide you with a reasonable amount of details on why your Proposal was rejected.
OUR ABILITY TO REJECT PROPOSALS AT ANY STAGE ACTING ON BEHALF OFA BUYER OR IN OUR CAPACITY IS A KEY CONDITION TO ALLOWING YOU TO ENROL AS A SERVICE PROVIDER AND SUBMIT PROPOSALS. BY ENROLING AS A SERVICE PROVIDER WITH ITEXCHANGE YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE SPECIFICALLY STUDIED THIS REQUIREMENT AND ACCEPT IT WITHOUT ANY RESERVATIONS WHATSOEVER.
After completing the evaluation of all proposals, the Buyer will notify us of the proposal that they have selected to implement the Proposed Project . The Buyer, and the Service Provider whose Proposal is finally selected will then enter into discussions on the commercials and other terms which need to be discussed and agreed. Unless the Buyer specifically indicates otherwise at the time of initially soliciting proposals, they will use the ITeXchange information technology services agreement (“ITSA”) template as the basis for the terms and conditions for the Proposed Project. Once the Buyer and the selected Service Provider have agreed and executed an ITSA, they will submit all of the agreed details, including final specifications, commercial terms and the respective rights and remedies of each party to us and this will be designated as a live project (“Project”) on ITeXchange. For the avoidance of any doubt, the responsibility of delivering a Project lies solely with the selected Service Provider. ITeXchange does not have any responsibility for any part of the Project delivery other than the governance and monitoring responsibilities set out below.
Delivering a Project:
If you are a selected Service Provider, you must comply with the following requirements at the appropriate stage of the Project's lifecycle:
If a change request is raised for additional features, interfaces or functionalities or requires modification to agreed functionality ("Change Request"), you must:
We will actively solicit feedback from both the Buyer and you during the Project implementation process and upon completion of the Project. Our assessment of the feedback will be reflected in your ITeXchange rating.
Welcome to the ITeXchange information technology services market place. This is a new generation market place which enables the procurement of information technology related services (“Services”). ITeXchange is meant to address the information technology needs of technology startups and established midsize enterprises that are looking to outsource their Services need to information technology service providers located across the globe. Often, the benefits of global Services have been available only to large companies with the ability to conduct expensive evaluations prior to engaging service providers. Emerging and midsize enterprises that need access to such service providers to leverage a global talent pool or the economic benefit of procuring services from efficient and effective service providers, find themselves unable to source these Services in an effective and efficient manner.
It is this market segment that ITeXchange addresses. We understand the various elements that have to mesh together in order to deliver Services to clients including vendor evaluation; the development of project specifications; selecting a suitable service provider; the contracting process; project governance and oversight; and payments and have developed criteria and methodologies that allow us to do many of the activities encompassed in the elements mentioned above.
We have enrolled a number of service providers on to our market place who can meet the various services needs of prospective buyers of IT Services (“Buyer”). As part of the enrollment process, we evaluate and score each service provider on their credentials and capabilities against our capability framework (each enrolled service provider is hereafter referred to as a “Service Provider”). All of these measures allow us to provide potential buyers with a marketplace where the process of procuring and delivering services is greatly simplified and standardized. We also provide a payment mechanism which requires Buyers to pay a certain amount of money in advance into an ITeXchange account. This money is released to Service Providers when the Buyer confirms that they have satisfied the agreed contractual conditions. This allows buyers the security of paying for Services in accordance with agreed milestones and Service Providers the security of knowing that payment for their Services is deposited with us and that they will be paid once they have satisfied their contractual obligations.
We have taken the model used by the physical product focused technology enabled marketplaces and enhanced it to cater to the procurement of services by adding a greater degree of predictability for both buyers and sellers. Part of this advantage is driven by our service provider evaluation and rating process and part it is driven by the standardization of contract terms and payment mechanisms that reduces a lot of the effort and cost associated with buying the Services outside of ITeXchange.
Registering with ITeXchange:
All Buyers are required to register using their email address on the ITeXchange portal (www.ITeXchangeWeb.com).While providing the email address, please provide the email address of the entity that is the Buyer. Unless you provide an email address using a domain name registered to the Buyer entity, we will not proceed with the registration process.
Upon receipt of the registration form, we will send you an email at the email address provided in the registration form. The email will contain a link to a webpage which you will need to access and enter the verification details contained in the email.
Once you have completed the verification process, you will be registered as a Buyer on ITeXchange.
Once logged into our system, you will be guided through the process to set up a Buyer account on ITeXchange (www.ITExchangeWeb.com)("Account").
Initiating a Project:
Following your acceptance of the Agreement, you will also be allowed to post the details of each specific set of Services you wish to procure (each a "Project") online on ITeXchange(www.ITExchangeWeb.com) using the "Initiate a Project" feature. Once you initiate the listing of a Project, the system will request that you fill in the necessary information including corporate information about yourself, the nature of your business (in brief) and the requirements for the Services to be performed, including, among other things, (i) the detailed specifications for any deliverables ("Project Specifications"), (ii) any applicable project timeframes or deadlines, (iii) payment terms (e.g., fixed price or time and materials basis), (iv) objective and measurable delivery and acceptance terms, , and (v) any Project specific personnel requirements. The Project Specifications together with all the ancillary details shall constitute a "Project Request."
The Project Request should be exhaustive in detail. This will reduce the risk of misinterpretation and the need for iterations will result in more detailed and responsive proposals from us("Proposals").
Once the initial Project Request is created, ITeXchange will review the information you have provided and will either approve the Project Request or seek clarifications and/or additional information from you.
Once we have approved the Project Request, we will shortlist a set of Service Providers, based on our evaluation of Service Providers and our interactions with you on finalizing the Project Request.
If your Project Request is of a nature such that none of the Service Providers are capable of delivering the Project on its current terms, we will take all reasonable efforts to identify an alternate service provider who, prima facie, has the capabilities to meet your Project Request. If we have not identified such a service provider within two (2) weeks of our commencing the search, we will notify you of the same and you may then decide to either remove the Project Request from ITeXchange or keep it listed for as long as you deem appropriate. Please remember that even if we identify an alternate service provider, time will be required to evaluate and enroll the service provider onto ITeXchange, though we can assure that you that we will take all steps that are reasonably possible to expedite the enrollment of such service provider.
We have no responsibility verifying the information you provide in your Project Requests.
Proposal Submission and Evaluation:
The Project Request will be communicated to the shortlisted Service Providers together with the relevant instructions.
The information contained in the Project Request sent to shortlisted Service Providers will not contain your name, corporate details or contact information.
In the event that further clarifications or information are needed with regard to a Project Request, they will be posted as questions on the ITeXchange Portal. You may respond to queries either by posting a response on the portal or through us, if you so request.
We will present to you the best proposal based on our judgement and assessment of our Service Providers. If you are not satisfied with our proposal, we will bring you alternate proposals with other service providers till you are satisfied.
Once you have accepted a Proposal, you will inform us in writing (whether by way of email or other written communication) and we will move the next step of the process.
Upon selection, the chosen Service Provider will be given your name and contact details so as to allow us to engage them in any required further commercial or technical discussions.
Project Implementation Framework:
All of the requirements documents will be prepared using the Project Request and the Proposal as a basis.These will be modified based on discussions; with you till you provide your approval on the requirements set that is agreed to be appropriate for the Project.
A project schedule will be prepared based on the agreed requirements.This will be modified based on discussions; with you till you provide your approval on the schedule that is agreed to be appropriate for the Project.
Appropriate level of staffing will be arranged for the execution of the Project and work commenced.
The Project will be executed in accordance with the methodology set out in the Project specifications.The Service Provider may also use the tools, if any, provided by ITeXchange for collaboration, project management and implementing a specific process or methodology. The Buyer can require that specific tools be used provided that such requirement is set out as part of the Project documentation.
The progress of the Project will be posted on the ITeXchange portal. You will be able to view this information by logging into your Account.
Periodic status reports will be provided to you using our reporting dashboard unless you require the use of another tool.
We will plan and support periodic Project reviews with you, to discuss the Project's progress and take any corrective action that may be required.Sufficient access will be provided to Project personnel for you to discuss any issues or clarifications you may reasonably require.Appropriate corrective actions will be taken on the recommendations made as a result of the Project reviews.
It will be ensured that, at all times, the Services are meeting the agreed quality and technology standards.
Once completed, you must provide your approval and sign-offs for each deliverable for each Project milestone in accordance with the timelines set out in the Project documentation.
Once the delivery obligations set out in the Project documentation are completed, you must issue a Project completion certificate.
If you raise a change request for additional features, interfaces or functionalities or requires modification to agreed functionality ("Change Request"), you must:
The impact of the Change Request on the Project's agreed schedule, functionality and price will be evaluated- Once the details of the change are agreed, an amendment to the applicable Project documentation will be prepared- Once the amendment is agreed upon and executed, it will become a part of the Project documentation and the Project will be performed in accordance with all of the agreed changes.
Optional Services:
Advisory Services: In the event that you require assistance with services such as the preparation of a Project Request; the detailed evaluation of Proposals; or consulting with subject matter experts in the technology in which the Project is being implemented, you may elect to engage our procurement consultants who will provide these services to you at then applicable rate for such consulting services, which rate will be provided to you upon request. You will need to contract with us separately for such services.
Project Monitoring Plus Services: In the event that you require project monitoring services from us, we can provide the same for a small fee. More information on the Project Monitoring Plus services can be found at www.ITeXchangeWeb.com/monitoring
Welcome to the ITeXchange, an information technology services marketplace. ITeXchange is meant to address the information technology needs of small and midsize businesses that are looking to outsource their Services needs to information technology service providers located across the globe. It is a new generation market place which enables the procurement of information technology related services (“Services”) from service providers we empanel after we evaluate and score them based on their credentials and capabilities. To learn more about our service offering please visit us at www.ITeXchangeWeb.com.
This Agreement (the “Agreement”) is hereby made and entered into on this ____ day of ______, 202_
By and between IT Exchange, Inc., a Delaware Corporation,with its registered address at 340 S Lemon Ave #4618, Walnut, CA 91789, (hereinafter “ITeXchange”)
and
________________________, an entity incorporated under the laws of ______________________, and having its registered office at ______________________, (hereinafter “Service Provider”)
In addition to the provisions of this Agreement, specific pages on our website at www.ITeXchangeWeb.com (“Website”), including but not limited to our terms for the Service Provider Marketplace Agreement, Terms of Use(www.ITeXchangeWeb.com/terms)and Privacy Policy(www.ITeXchangeWeb.com/privacy)may set out additional terms and conditions, all of which are incorporated by reference into this Agreement. Such terms and conditions may be changed or updated at any time with or without notice to you in accordance with their respective provisions. You agree to accept delivery of any notice, including any other notice regarding your account or the Service, via the email account address you have most recently registered with us or, in the case of notices with regard to the terms for the Service Provider Marketplace Agreement, Terms of Use or Privacy Policy, in accordance with their respective provisions. It is your responsibility to review any such change notices and to check the Website from time to time, including the terms for the Service Provider Marketplace Agreement, Terms of Use and Privacy Policy, to be sure you understand the terms and conditions, including any updates thereto, and are in compliance with them. In the case of inconsistencies between this Agreement, Service Provider Marketplace Agreement and any information provided on the Website or in online or off-line materials (e.g., promotional materials and mailers), the matter will be referred to ITeXchange and its views shall be final and binding on all parties.
INTRODUCTION
ITeXchange wishes to empanel the Service Provider as a subcontractor for certain information technology services that it provides for its clients. The Service Provider shall provide services on the terms and conditions set forth in this Agreement, Service Provider Marketplace Agreement and as set out in one or more Statements of Work (as defined below) that ITeXchange and the Service Provider may enter into hereunder from time to time. This Agreement sets forth general terms and conditions which are generally applicable to the provision of information technology services hereunder. Any Statement of Work entered into hereunder shall set out the details, specific terms and conditions applicable to information technology services to be provided thereunder, in addition to the terms and conditions set out in these general terms and conditions.
NOW THEREFORE, in consideration of the mutual agreements and covenants hereafter set forth, the parties hereto agree as follows:
PART A – GENERAL TERMS AND CONDITIONS
1. TERMS AND CONDITIONS
If any provision in these General Terms is inconsistent or in conflict with the terms and conditions of the Statement of Work, the terms and conditions of the Statement of Work shall prevail. Any words that are capitalized in these General Terms not defined herein shall have the meaning indicated in the definitions clause of the Statement of Work.
2. DEFINITIONS
2.1 “Affiliate” of either party shall mean a person or entity directly or indirectly controlling, controlled by, or under common control with such party. “Control” for the purposes of this Agreement shall mean with respect to any person or entity, the right to direct the exercise of/ or exercise at least fifty per cent (50%) or more of the voting rights in such person or entity.
2.2 “Change Order” shall mean the document setting out the agreed changes to any Statement of Work issued in accordance with Clause 3.5.
2.3 “Confidential Information” shall mean any confidential or proprietary information, of a party, in any form, including but not limited to information relating to the such party’s past, present or future research, and development or business activities, including all technical and financial records, data, and information, and which when disclosed is (a) marked as confidential (b) is identified as confidential at the time of disclosure; or (c) that would be apparent to a reasonable person to be of a confidential or proprietary nature.
2.4 “Documentation” shall mean one copy of all technical specifications and user manuals for the Deliverables.
2.5 “Deliverables” shall mean any and all software (whether in object code form or source code form), the Documentation and any other materials, reports or information which are to be provided by the Service Provider pursuant to a Statement of Work.
2.6 “Dispute” shall have the meaning ascribed to it in Section 16.6.
2.7 “Export Control Laws” shall mean the laws and regulations of the United States, the European Union, the United Nations and other jurisdictions that subject certain software and technical data (including certain services and training) and certain transactions to export controls.
2.8 “Force Majeure Event” shall mean any natural disasters, actions or decrees of governmental bodies, communication line failures not the fault of the affected party, or any other delay or failure which arises from causes beyond a party’s reasonable control.
2.9 “General Terms” shall mean the general terms and conditions that are applicable to ITeXchange and the Service Provider under this Agreement (exclusive of the terms of any Statement of Work entered into hereunder).
2.10 “Intellectual Property Rights” shall mean any patents, copyrights, trademarks, service marks (in each case, whether registered or not), registered designs, database right, design right, moral right or any other property rights that grant similar rights as the foregoing, including those subsisting in the Deliverables or any inventions, drawings, performances, software, databases, ideas, methodologies in any manner related to the Services and Deliverables.
2.11 “Party” shall mean either ITeXchange or the Service Provider and “Parties” shall mean both ITeXchange and the Service Provider.
2.12 “Services" shall mean the software development, modification, maintenance or other services or tasks to be performed by Service Provider for ITeXchange, as more fully agreed in a Statement of Work.
2.13 “Statement of Work” or “SOW” shall mean the statement of work which sets out the details of the Deliverables and Services to be provided by the Service Provider to ITeXchange together with any specific terms and conditions that are applicable to the Parties in addition to the General Terms and is executed by both parties.
2.14 “Third Party Materials” shall mean any product, software, hardware, documentation, or other materials belonging to third parties, required for the performance of this Agreement or any Statement of Work hereunder.
3. PERFORMANCE BY SERVICE PROVIDER AND OBLIGATIONS OF THE ITeXchange.
3.1 All Services to be performed and any related Deliverables to be provided by Service Provider shall be in accordance with a duly issued Statement of Work. The Statement of Work shall be developed using the format provided in Appendix A to these General Terms. A Statement of Work will only be effective if it is signed by both parties.
3.2 The Service Provider shall provide the Services in a professional and timely manner. The Service Provider acknowledges that time is of the essence for the discharge of its obligations under this Agreement.
3.3 The Service Provider shall provide the Services from its locations, or as otherwise agreed by the Parties in writing, and unless otherwise agreed to in writing, shall be solely responsible for providing all infrastructure, equipment, software or other requirements related to the provision of the Deliverables and Services.
3.4 ITeXchange shall provide the Service Provider with all information reasonably required for the provision of the Services and Deliverables in timely manner.
3.5 If ITeXchange wants to modify the scope of the Services to be performed or the Deliverables to be provided under a Statement of Work, ITeXchange shall give the Service Provider a detailed description of the proposed modifications. The Service Provider shall develop and deliver to ITeXchange a draft change order within ten days of receiving the change request, setting out the revisions to the Statement of Work and the Services and Deliverables required by the change request, including without limitation, any changes to (A) the compensation to the Service Provider; and (B) the schedule for performance and delivery of the Services and Deliverables. Once the Parties have agreed the details of the change, the Service Provider will prepare and the Parties will execute the final change order (each a “Change Order”). Following execution, such Change Order shall be effective and shall become a part of the Statement of Work. In the event the Parties do not agree to the terms of a Change Order, the Statement of Work shall continue in effect as originally executed by the Parties, unless otherwise terminated by ITeXchange in accordance with the terms of this Agreement or the Statement of Work. The Service Provider may also propose changes to the scope and/or compensation under a Statement of Work and ITeXchange shall consider such proposed changes in good faith.
3.6 ITeXchange and Service Provider shall each designate a "Project Manager" who will serve as the primary liaison between their employer and the other Party with respect to the Services and Deliverables. The Project Managers shall: (i) have day-to-day responsibility for supervising the performance of their respective employer’s obligations under the Agreement; and (ii) have responsibility for seeking all necessary approvals to commit their employer to any course of action, undertaking, obligation or responsibility under the Agreement. ITeXchange and Service Provider shall each cause their designated Project Manager to respond reasonably promptly to all communications from the other Party.
3.7 ITeXchange and the Service Provider shall conduct a meeting at least once every month, or as otherwise agreed in a Statement of Work (via conference call or other method as agreed by the parties) to review matters regarding operations, security, billing, the general relationship and other subjects that relate to the Services. ITeXchange and the Service Provider shall deliver to the other the items that such Party would like to discuss at the relevant meeting at least five (5) days prior to the meeting date. A Party may add additional issues to the agenda by each Party with the consent of the other Party, such consent not to be unreasonably withheld. The monthly review meetings shall be attended by the Project Managers and any other personnel relevant to the issues to be addressed based on the agenda. In addition to the monthly review meetings described above, the Service Provider agrees to communicate with ITeXchange within such periods as reasonably requested by ITeXchange to discuss status, workflow, operational issues and other matters that relate to the Service Provider’s provision of the Services; provided that, if any Service Provider personnel are required to travel to any location other than where they are currently performing Services, ITeXchange shall bear all reasonable, documented expenses related thereto that ITeXchange has pre-approved in writing.
3.8 The Statement of Work shall specify any Third Party Materials to be utilized for, incorporated into or otherwise provided as part of any Services or Deliverables. Unless expressly stated otherwise in the Statement of Work, ITeXchange or its clients shall be responsible for obtaining at its own expense all rights, licenses and consents necessary for the Parties to use such Third Party Materials. Without the prior written consent of ITeXchange or as expressly set forth in the applicable Statement of Work, in no event shall the Service Provider cause or permit any Third Party Materials to be utilized for, incorporated into or otherwise provided as part of any Services or Deliverables.
3.9 The Service Provider shall not subcontract any of its Service delivery or other obligations under this Agreement.
4. SERVICE PROVIDER PERSONNEL
4.1 ITeXchange reserves the right to review the resumes of and interview all Service Provider personnel who may perform services pursuant to this Agreement.
4.2 Persons designated in any Statement of Work as “Key Personnel” shall be considered to be essential to services being performed by Service Provider. For the duration of the Statement of Work, Service Provider shall not remove, replace or reassign Key Personnel without the prior written consent of ITeXchange. If any Key Personnel become unavailable for reasons beyond Service Provider’s control, Service Provider shall immediately notify ITeXchange and Service Provider shall use its best efforts to provide a replacement of comparable skill and expertise at the earliest. Prior to substitution of any Key Personnel, Service Provider shall obtain ITeXchange’s prior written consent as to the acceptability of replacement personnel.
4.3 In the event that any Service Provider personnel performing services under this Agreement or any Statement of Work is found to be unacceptable to the Buyer for any reason or to ITeXchange for good reason, ITeXchange shall have the right to notify Service Provider of such fact (without waiving any other rights or remedies it may have hereunder) and Service Provider shall remove the person from the Project. Service Provider shall provide a qualified replacement, at the same or a lower rate of compensation and there will be no charge to ITeXchange for any replacement provided in accordance with this provision for a reasonable period of time while the replacement employee acquires the necessary orientation and education to make a productive contribution substantially equal to that which was expected of the prior person.
4.4 Service Provider agrees to have each of its personnel performing services for the ITeXchange abide by the terms and conditions set forth in this Agreement, including but not limited to the confidentiality and intellectual property conditions.
4.5 Service Provider agrees to perform a background check on each of its personnel in accordance with the Buyer’s policy regarding the same, if any. Service Provider shall give all its personnel prior notice that their participation in the applicable Statement of Work is contingent on passing the background check. Should any of Service Provider’s personnel fail a background check, Service Provider will immediately notify ITeXchange of the information uncovered by the investigation.
5. ACCEPTANCE OF SERVICES AND DELIVERABLES.
5.1 Service Provider must comply with the terms listed in “Selling and Delivering on ITeXchange” in the Service Provider Marketplace Agreement.
5.2 The Parties shall agree on acceptance criteria for the Services and Deliverables in the applicable Statement of Work.
Unless otherwise set forth in the applicable Statement of Work, ITeXchange will have thirty (30) business days from the date on which the Deliverable is delivered to ITeXchange to conduct acceptance testing. If, in ITeXchange’s reasonable opinion, the Deliverable conforms to the acceptance criteria, ITeXchange shall issue an acceptance certificate to the Service Provider. If, in ITeXchange’s reasonable opinion, the Deliverable does not materially conform to the acceptance criteria, ITeXchange shall promptly notify Service Provider of such finding in sufficient detail as to enable the Service Provider to identify the non-conformance with the acceptance criteria. The Service Provider shall, within a reasonable time, but no later than 30 days following such notification, modify the Deliverable so as to rectify such non-conformance. If the Service Provider is unable to remedy any non-conformance as contemplated herein, ITeXchange shall be entitled to, in addition to any other rights it has, and Service Provider shall promptly provide, a refund of all amounts paid in respect of such Deliverable or any related Deliverables.
6. PAYMENTS.
6.1 ITeXchange shall pay the price set forth in the Statement of Work to Service Provider as consideration for its performance of Services and provision of the Deliverables in accordance with the terms of this Agreement and the Statement of Work. Service Provider agrees and acknowledges that ITeXchange will not be liable to pay any amounts towards fees or payments of any sort unless that money has been released by the Buyer to ITeXchange.
6.2 The Statement of Work shall set out the cost reimbursement mechanism to be used in the event that Service Provider’s personnel are required to travel to an ITeXchange or Buyer location or any other location in order to deliver the Services.
6.3 The Service Provider shall upload a copy of the invoice on the ITeXchange platform,(www.ITeXchangeWeb.com) Invoices shall be raised on the completion of a milestone as specified in the applicable Statement of Work if the Services are being provided on a fixed price basis, or monthly, if the Services are being provided on a time and materials basis.
6.4 ITeXchange shall notify the Service Provider in writing of whether ITeXchange or Buyer is accepting or disputing an invoice no later than ten (10) business days from the date of receipt of invoice. In the event ITeXchange or Buyer is disputing an invoice, ITeXchange shall state the reasons for it doing so as part of its notification of dispute together with the part of the invoiced amount that is being disputed. Subject to Clause 6.3 above, any part of the invoiced amount that is not disputed shall become payable according to the terms of this Agreement without any further approval from ITeXchange.
6.5 Subject to Clause 6.3 above, ITeXchange shall make payments to the Service Provider against an invoice from the Service Provider. In the event of a disputed invoice, ITeXchange shall only make payments against the undisputed portion of such invoice, net of any amounts payable to it by the Service Provider as set forth above. ITeXchange shall make all payments required under this Clause 6 to the Service Provider no later than seven (7) business days after its receipt of payment from the Buyer.
6.6 ITeXchange shall reimburse Service Provider for reasonable, documented (receipts) expenses incurred while performing Services, provided prior written approval for such expenses is obtained from ITeXchange.
6.7 The agreed prices are inclusive of all taxes except as follows. ITeXchange shall be liable for all transaction taxes on the Services and Deliverables provided under this Agreement. Such transaction taxes shall include but are not limited to sales tax, excise tax, value added tax (VAT), goods and services tax (GST), consumption tax, business tax and similar taxes. The Service Provider shall separately state, where applicable, transaction taxes on the invoice. The Service Provider shall not charge the transaction taxes if ITeXchange provides an exemption certificate to the reasonable satisfaction of the Service Provider and which is acceptable to the taxing authorities. In the event that the Service Provider does not charge transaction taxes and the tax authorities subsequently opine that the Service Provider should have charged such taxes, ITeXchange shall pay such taxes as required by the authorities.
7. COMPLIANCE WITH LAWS
7.1 Each Party shall comply with all laws and regulations specifically applicable to their provision or receipt of Services and Deliverables respectively under the Agreement.
7.2 ITeXchange shall include all compliance requirements, including but not limited to all laws, regulations, government or regulatory approved codes of practice or orders and all similar or analogous requirements that ITeXchange or the Buyer wishes the Service Provider to comply with in the performance of Services and the creation of the Deliverables in the Statement of Work (“Applicable Laws”).
7.3 In the event that there are any changes in law or regulations applicable to this Agreement, including but not limited to changes in Applicable Law, which adversely affect the Service Provider’s ability to render the Services and Deliverables (a “Regulatory Change”), the Parties shall use their commercially reasonable efforts to agree upon an amendment to the Statement of Work (using the Change Order mechanism) in order to address the impact of such Regulatory Change on the Services and Deliverables.
7.4 The Parties shall not directly or indirectly export or re-export any software and technical data (including any direct product thereof) or undertake any transaction or service that may be subject to Export Controls Laws in violation of any such laws or regulations. The Parties acknowledge that under applicable United States law, information, data and technology provided or disclosed by ITeXchange may be considered exported as soon as it is received by a foreign national (including any person who is not a United States citizen or permanent resident), even if such person is resident in the United States.
7.5 The Service Provider ensures that the services, deliverables and other materials provided to ITeXchange or the Buyer must not contain any viruses, hidden content or other malicious applications (including, for example, any “trap doors,” “worms,” “Trojan horses,” “time bombs,” back doors, disabling devices, or code blocks) or other unauthorized, hidden, or harmful programs. The information provided to ITeXchange under or in connection with this Agreement is, and shall be at all applicable times, true, accurate, and complete.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 The Service Provider agrees that all Deliverables and Services provided are “work for hire”. ITeXchange or the Buyer shall, upon creation, exclusively own all Intellectual Property Rights in the Deliverables and any materials created in provision of the Services including in any inventions, ideas, methodologies, routines, algorithms, designs, databases, code bases which are originated, conceived, written or made in the performance of the Services or development of the Deliverables. To the extent any such Intellectual Property Rights in the Deliverables are deemed not to be “work for hire” under applicable law, the Service Provider hereby irrevocably assigns all such Intellectual Property Rights to ITeXchange or the Buyer and agrees to undertake all additional acts reasonably necessary to effect such assignment, including execution of further assignments, registrations, and other documents and instruments, promptly upon request by ITeXchange, at ITeXchange’s cost, to ensure the assignment of such rights to ITeXchange or the Buyer and perfection of ITeXchange’s interest in such Intellectual Property Rights.
8.2 To the extent, that the Intellectual Property Rights contemplated in Clause 8.1 do not automatically vest with ITeXchange or the Buyer, by operation of law or the terms of this Agreement, the Service Provider shall hold them in trust for ITeXchange or the Buyer until such rights shall be fully and absolutely vested in ITeXchange or the Buyer pursuant to Clause 8.1 above.
8.3 In the event that any prior intellectual property of the Service Provider is embedded into the Deliverables, the Service Provider hereby grants to ITeXchange or the Buyer, at no additional cost, a non-exclusive, royalty free, perpetual license to use and modify such prior intellectual property embedded in such Deliverable as is necessary to enable the use of such Deliverables. Nothing contained in this Clause 8.3 or elsewhere in this Agreement shall be construed to grant ITeXchange or the Buyer any right to use or exploit such prior intellectual property in its stand-alone form separate and apart from the Deliverables.
8.4 The Service Provider shall procure that all employees, consultants, and other personnel who participate in performance of the Services hereunder irrevocably and unconditionally assign and waive in favor of ITeXchange or the Buyer any rights, title or interests in and/or to the Deliverables or any other work product contemplated herein, and all Intellectual Property Rights therein, immediately on creation and agree in writing to such obligations.
8.5 The Service Provider does not transfer ownership of any materials to ITeXchange by submitting it to ITeXchange, but does grant ITeXchange, the worldwide right to host, display, demonstrate, publicly perform, use, reproduce, format, and distribute any materials, trademarks, trade names and other forms of Intellectual Property that we deem appropriate and which the Service Provider has provided to ITeXchange for purposes of marketing and making available to Buyers and other interested parties a description of the services available on ITeXchange and in marketing campaigns, presentations, and press releases for ITeXchange or any aggregation of the Service Providers.
9. CONFIDENTIALITY
9.1 Each Party receiving information hereunder (each, a “Receiving Party”) shall maintain the secrecy of the other party’s (each a “Disclosing Party”) Confidential Information and shall not permit the disclosure or duplication of Confidential Information to any third party other than an employee, agent or representative of the Receiving Party who needs such information for the performance of the obligations hereunder and who is subject to written obligations substantially similar to those set forth herein to maintain the confidentiality of such Confidential Information. The Receiving Party shall ensure that it maintains Confidential Information using security practices and procedures which conform to generally accepted industry standards.
9.2 The secrecy of the Confidential Information disclosed pursuant to this Agreement shall be maintained for a period of five (5) years following the expiry of this Agreement, provided trade secrets shall be kept secret for such period as protected under law. The Receiving Party may disclose Confidential Information where the contemplated disclosure is required by applicable law, by a court of competent jurisdiction or by a regulatory body or stock exchange with authority over its business or securities, provided that, where permitted by applicable law, the Receiving Party gives the Disclosing Party sufficient notice of the disclosure, uses reasonable endeavors to cooperate with the Disclosing Party (at the Disclosing Party’s expense) to seek a protective order, and only after such cooperation (if requested by the Disclosing Party) discloses only what it must to comply with such legal obligations.
9.3 If the Receiving Party commits a breach of its obligations related to Confidential Information, in addition to the remedies available to it for breach of contract, the Disclosing Party shall be entitled to seek the remedies afforded it in equity or at law for breach of confidence including injunctive relief without the requirement to post any bond or security.
9.4 Notwithstanding anything here in, information disclosed pursuant to this Agreement shall not be deemed to be Confidential Information if the Receiving Party can show that such information (a) was publicly available prior to this Agreement or is made publicly available by the Disclosing Party without restriction; (b) was rightfully received by the Receiving Party from third parties without accompanying secrecy obligations; (c) was already in the Receiving Party’s possession and was lawfully received from sources other than the Disclosing Party; or (d) was independently developed by the Receiving Party.
10. REPRESENTATIONS AND WARRANTIES
Service Provider represents and warrants that:
10.1.1 The Services will be performed using generally accepted industry standards and practices and the Deliverables shall be provided in a workman like manner.
10.1.2 The Services shall be provided in a timely manner in accordance with the schedule detailed in the Statement of Work.
10.1.3 The Services and Deliverables shall conform to all the agreed specifications as detailed in the Statement of Work.
10.1.4 Neither the Deliverables nor the provision of the Services shall infringe on any third party Intellectual Property Rights.
10.1.5 Its execution and delivery of this Agreement and performance or compliance with the terms of this Agreement will not conflict with, result in a breach of or constitute a default under any agreement to which Service Provider is bound.
10.1.6 To its knowledge, there are no threatened lawsuits, actions or any other legal or administrative proceedings against Service Provider which, if adversely determined against Service Provider, would have a material adverse affect on Service Provider’s ability to perform its obligations under this Agreement or a Statement of Work.
10.2 If, at any time within three (3) months from the date of acceptance of a Deliverable or the performance of the Service, ITeXchange notifies the Service Provider in writing that the warranties have been breached, then the Service Provider will, at ITeXchange’s discretion, but at Service Provider’s own expense, either remedy that breach within 15 days or refund to ITeXchange the fees paid for the affected Deliverable and/or Service. The obligation on the Supplier to remedy the breach does not affect any other rights or remedies that ITeXchange may have for the Service Provider’s breach of these warranties.
10.3 Save for the representations and warranties set forth in this Agreement, there are no other representations express or implied, and specifically there are no implied representations or warranties of merchantability or fitness for a particular purpose.
11. INDEMNIFICATION.
11.1 Service Provider shall defend, indemnify and hold ITeXchange harmless from any claims, loss, damages, liabilities (including reasonable legal costs) arising from (a) any third party claim that any of the Services or Deliverables provided to ITeXchange by the Service Provider breach or violate any Intellectual Property Rights of any third party, except to the extent that (i) such breach or violation subsists in materials or information provided to the Service Provider by ITeXchange or (ii) arises as a direct result of specifications or instructions provided by ITeXchange pursuant to a Statement of Work entered into hereunder, (b) negligence of the Service Provider or its employees and agents (c) any claims made by employees of the Service Provider against ITeXchange (d) any breach of the Service Provider’s obligations related to Confidential Information and obligations under Clause 9; (e) failure to perform the Services or deliver the Deliverables in accordance with the terms of this Agreement and the Statement of Work. In addition, should any Services and/or Deliverables become, or in Service Provider’s opinion be likely to become, the subject of a claim, Service Provider shall, at its option and expense, (1) procure for ITeXchange the right to make continued use thereof, or (2) replace or modify such so that it becomes non-infringing.
11.2 The Service Provider shall have control over the defense of any indemnified claim at Service Provider’s cost, provided that ITeXchange may participate in such defense at ITeXchange’s expense. The Service Provider shall not, without the prior written approval of ITeXchange enter into any settlement or make any admissions which would bind or impact the Buyer’s or ITeXchange’s business in any manner.
12. TERM.
12.1 Notwithstanding the date of signature of this Agreement, the Agreement shall come into force on ______________________.
12.2 The Agreement shall continue unless terminated in accordance with the provisions of this Agreement. Obligations under this Agreement which by their nature would continue beyond the termination, cancellation or expiration of this Agreement (including but not limited to the confidentiality obligation under Clause 9 of this Agreement) shall survive termination, cancellation or expiration of this Agreement.
13. TERMINATION.
13.1 Either Party has the right to terminate this Agreement if the other breaches or commits a default of any obligation and has not cured such breach within 15 (fifteen) calendar days after receipt of notice of such default (or such additional cure period as the non- defaulting party may authorize), provided, however, termination is immediate if there is a breach of confidentiality, or for any other breach which is incapable of cure.
13.2 ITeXchange may terminate this Agreement for convenience upon sixty (60) days written notice to the Service Provider.
13.3 Either Party may terminate this Agreement by written notice to the other and may regard the other Party as in default of this Agreement, if the other Party becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, or becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or has wound up or liquidated, voluntarily or otherwise. In the event that any of the above events occurs, that Party shall immediately notify the other Party of its occurrence.
13.4 Upon the termination of this Agreement by either Party, or its expiration, the Service Provider shall immediately provide ITeXchange with all Deliverables which are completed and those which are work in progress, including any other work products which are conceived or originated in the provision of the Services.
13.5 Following termination of this Agreement by either Party, ITeXchange shall pay to Service Provider charges for all Services and Deliverables provided to ITeXchange up to the date of termination.
14. FORCE MAJEURE
In the event that either Party is unable to perform any of its obligations under this Agreement of Force Majeure Event, the Party whose performance has been so affected shall immediately give notice to the other party and shall do everything reasonably possible to resume performance. Upon receipt of such notice, this Agreement shall be immediately suspended. If the period of non-performance exceeds fifteen (15) days from the receipt of notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may by giving written notice terminate this Agreement.
15. NOTICES
All notices to be given in connection with this Agreement shall be effective upon receipt, shall be made in writing and shall be sufficiently given if personally delivered or if sent by courier or other express mail service, postage prepaid, addressed to the party entitled or required to receive such notice at the address for such party as follows:
To ITeXchange:
Attention: Sanjeev Kapoor
340 S Lemon Ave #4618,
Walnut, CA 91789
USA
To Service Provider:
Attention: ____________
______________________
_______________________
Either party may change such address by notice to the other party.
16. GENERAL PROVISIONS
16.1 Non-Waiver and Amendment. No waiver, alteration, modification, or cancellation of any of the provisions of this Agreement shall be binding unless made in writing and signed by both ITeXchange and Service Provider. The failure of either ITeXchange or the Buyer at any time or times to require performance of any provision hereof shall in no manner affect the right at a later time to enforce such provision. No remedy referred to in this Agreement is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to herein or otherwise available at law, in equity or otherwise.
16.2 Assignment. ITeXchange may in its discretion assign the Agreement upon notice to the Service Provider. Service Provider shall not assign, transfer or offer as security any right or interest or delegate any obligation arising under this Agreement without ITeXchange’s written approval.
16.3 Independent Contractors. It is expressly understood that ITeXchange and Service Provider are independent contractors, and that neither has the authority to bind the other to any third person or otherwise to act in any way as the representative of the other, unless otherwise expressly agreed to in writing signed by both parties hereto.
16.4 Non solicit: Neither Party shall during the term and for a period of twelve (12) months after its expiration or termination of this Agreement, without the prior written consent of the other Party, directly or indirectly solicit or entice away from the employment of the other Party any person(s) employed (or any person(s) who have been so employed in the preceding six (6) months) by such other Party in the provision of the Services. The Parties shall only communicate with the employees of the other Party via officially approved means of communication such as the official email and Skype ID provided, unless there is an approval in writing to the contrary. Nothing herein shall apply to any unsolicited responses by employees of either Party to general recruitment advertising.
16.5 Governing Law: This Agreement is governed by the laws of the state of California which apply to the interpretation of this Agreement and to any claims for breach of it, regardless of conflict of laws principles.
16.6 Dispute Resolution: In the event of any dispute, claim or controversy arising out of or in connection with this Agreement (each a “Dispute”), the Parties will attempt in good faith to resolve such Dispute through negotiations between them. In the event the Parties fail to resolve the Dispute, the Parties irrevocably consent to the state or U.S. federal courts located in the state of California having jurisdiction over such Dispute.
16.7 Publicity: Neither Party shall use the other Party’s names, logos, service marks, trade names or trademarks or refer to the other Party directly or indirectly in any media release, public announcement, or public disclosure relating to this Agreement, including in any promotional, advertising or marketing materials, customer lists or business presentations without the prior written consent of the other Party prior to each such use or release.
16.8 Entire Agreement. This Agreement, including the General Terms and the Statement of Work, sets forth the entire agreement and understanding of the Parties with respect to the subject matter hereof, and supersedes all prior oral and written agreements, understandings, representations, conditions and all other communications relating thereto.
IN WITNESS WHEREOF, the parties have executed this Agreement by their authorized representatives as of the date first written above.
| Accepted and Agreed to: | Accepted and Agreed to: |
|
_________________________ |
IT Exchange, Inc |
| Authorized Signatory | Authorized Signatory |
| _________________________ | _________________________ |
| Name | Name |
| _________________________ | _________________________ |
| Title | Title |
| _________________________ | _________________________ |
| Date | Date |
This Agreement (the “Agreement”) is hereby made and entered into on this ____ day of ______, 202_
By and between
____________________________________with its place of business located at _____________________ (hereinafter “Buyer”)
and
_________________________, with its registered office at ______________________, (hereinafter “Service Provider”)
INTRODUCTION
The Buyer, who is in the business of _________________________________________, desires to procure certain information technology services and have chosen the Service Provider through ITeXchange, Inc.to provide the services on the terms and conditions set forth in the Agreement and as set out in one or more Statements of Work(as defined below) that Buyer and Service Provider may enter into hereunder from time to time.
This Agreement set forth general terms and conditions which are generally applicable to the provision of information technology services hereunder. Any Statement of Work entered into hereunder shall set out the details, terms and conditions of specific information technology services to be provided hereunder, in addition to the terms and conditions set out in the general terms and conditions. .
NOW THEREFORE, in consideration of the mutual agreements and covenants hereafter set forth, the parties hereto agree as follows:
PART A – GENERAL TERMS AND CONDITIONS
1. TERMS AND CONDITIONS
If any provision in these General Terms is inconsistent or in conflict with the terms and conditions of the Statement of Work, the terms and conditions of the Statement of Work shall prevail. Any words that are capitalized in these General Terms not defined herein shall have the meaning indicated in the definitions section of the Statement of Work.
2. DEFINITIONS
2.1 “Affiliate” of either party shall mean a person or entity directly or indirectly controlling, controlled by, or under common control with such party. “Control” for the purposes of this Agreement shall mean with respect to any person or entity, the right to direct the exercise of/ or exercise at least fifty per cent (50%) or more of the voting rights in such person or entity.
2.2 “Change Order” shall mean the document setting out the agreed changes to any Statement of Work issued in accordance with Section 3.5.
2.3 “ITeXchange” shall mean IT Exchange, Inc., a Delaware corporation, and its subsidiaries, as applicable as the context requires.
2.4 “Confidential Information” shall mean any confidential or proprietary information, of a party, in any form, including but not limited to information relating to the such party’s past, present or future research, and development or business activities, including all technical and financial records, data, and information, and which when disclosed is (a) marked as confidential (b) is identified as confidential at the time of disclosure; or (c) that would be apparent to a reasonable person to be of a confidential or proprietary nature.
2.5 “Documentation” shall mean one copy of all technical specifications and user manuals for the Deliverables.
2.6 “Deliverables” shall mean any and all software (whether in object code form or source code form), the Documentation and any other materials, reports or information which are to be provided by the Service Provider pursuant to a Statement of Work.
2.7 “Dispute” shall have the meaning ascribed to it in Section 16.6.
2.8 “Export Control Laws” shall mean the laws and regulations of the United States, the European Union, the United Nations and other jurisdictions that subject certain software and technical data (including certain services and training) and certain transactions to export controls.
2.9 “Force Majeure Event” shall mean any natural disasters, actions or decrees of governmental bodies, communication line failures not the fault of the affected party, or any other delay or failure which arises from causes beyond a party’s reasonable control.
2.10 “General Terms” shall mean the general terms and conditions that are applicable to the Buyer and the Seller under this Agreement (exclusive of the terms of any Statement of Work entered into hereunder).
2.11 “Intellectual Property Rights” shall mean any patents, copyrights, trademarks, service marks (in each case, whether registered or not), registered designs, database right, design right, moral right or any other property rights that grant similar rights as the foregoing, including those subsisting in the Deliverables or any inventions, drawings, performances, software, databases, ideas, methodologies in any manner related to the Services and Deliverables.
2.12 “Party” shall mean either the Buyer or the Service Provider and “Parties” shall mean both the Buyer and the Service Provider.
2.13 “Services" shall mean the software development, modification, maintenance or other services or tasks to be performed by Service Provider for Buyer, as more fully agreed in a Statement of Work.
2.14 “Statement of Work” or “SOW” shall mean the statement of work which sets out the details of the Deliverables and Services to be provided by the Service Provider to the Buyer together with any specific terms and conditions that are applicable to the Parties in addition to the General Terms and is executed by both parties.
2.15 “Third Party Materials” shall mean any product, software, hardware, documentation, or other materials required for the performance of this Agreement or any Statement of Work hereunder..
3. PERFORMANCE BY SERVICE PROVIDER AND OBLIGATIONS OF THE BUYER.
3.1 All Services to be performed and any related Deliverables to be provided by Service Provider shall be in accordance with the Statement of Work. The Statement of Work shall be developed using the format provided in Appendix A to these General Terms. A Statement of Work will only be effective if it is executed by both parties.
3.2 The Service Provider shall provide the Services in a professional and timely manner. The Service Provider acknowledges that time is of the essence for the discharge of its obligations under this Agreement.
3.3 The Service Provider shall provide the Services from its locations, or as otherwise agreed by the Parties in writing, and unless otherwise agreed shall be responsible for providing all infrastructure, equipment, software or other requirements related to the provision of the Deliverables and Services.
3.4 The Buyer shall provide the Service Provider with all information reasonably required for the provision of the Services and Deliverables in timely manner.
3.5 If the Buyer wants to modify the scope of the Services to be performed or the Deliverables to be provided under a Statement of Work, the Buyer shall give the Service Provider a detailed description of the proposed modifications. The Service Provider shall develop and deliver to Buyer a draft change order within fifteen days of receiving the change request, setting out the revisions to the Statement of Work and the Services and Deliverables required by the change request, including without limitation, any changes to (A) the compensation to the Service Provider; and (B) the schedule for performance and delivery of the Services and Deliverables. Once the Parties have agreed the details of the change, the Service Provider will prepare and the Parties will execute the final change order (each a “Change Order”). Following execution, such Change Order shall be effective and shall become a part of the Statement of Work. In the event the parties do not agree to the terms of a Change Order, the Statement of Work shall continue in effect as originally executed by the Parties, unless otherwise terminated by Buyer in accordance with the terms of this Agreement or the Statement of Work. The Service Provider may also propose changes to the scope and/or compensation under a Statement of Work and the Buyer shall consider such proposed changes in good faith.
3.6 Buyer and Service Provider shall each designate for a "Project Manager" who will serve as the primary liaison between their employer and the other Party with respect to the Services and Deliverables. The Project Managers shall: (i) have day-to-day responsibility for supervising the performance of their respective employer’s obligations under the Agreement; and (ii) have responsibility for seeking all necessary approvals to commit their employer to any course of action, undertaking, obligation or responsibility under the Agreement. Buyer and Service Provider shall each cause their designated Project Manager to respond reasonably promptly to all communications from the other Party.
3.7 The Buyer and the Service Provider shall conduct a meeting at least once every month, or as otherwise agreed in a Statement of Work (via conference call or other method as agreed by the parties) to review matters regarding operations, security, billing, the general relationship and other subjects that relate to the Services. The Buyer and the Service Provider shall deliver to the other the items that such Party would like to discuss at the relevant meeting at least five (5) days prior to the meeting date. A Party may add additional issues to the agenda by each party with the consent of the other Party, such consent not to be unreasonably withheld. The monthly review meetings shall be attended by the Project Managers and any other personnel relevant to the issues to be addressed based on the agenda. In addition to the monthly review meetings described above, the Service Provider agrees to communicate with the Buyer within such periods as reasonably requested by the Buyer to discuss status, workflow, operational issues and other matters that relate to the Service Provider’s provision of the Services; provided that, if any Service Provider personnel are required to travel to any location other than where they are currently performing Services, the Buyer shall bear all reasonable, documented expenses related thereto that Buyer has pre-approved in writing.
3.8 The Statement of Work shall specify any Third Party Materials to be utilized for, incorporated into or otherwise provided as part of any Services or Deliverables. Unless expressly stated otherwise in the Statement of Work, the Buyer shall be responsible for obtaining at its own expense all rights, licenses and consents necessary for the Parties to use such Third Party Materials. Without the prior written consent of the Buyer or as expressly set forth in the applicable Statement of Work, in no event shall the Service Provider cause or permit any Third Party Materials to be utilized for, incorporated into or otherwise provided as part of any Services or Deliverables.
3.9 The Service Provider shall not subcontract any of its Service delivery or other obligations under this Agreement without the prior written approval of the Buyer. If the Buyer allows the Service Provider to subcontract any of its obligations under this Agreement, the Service Provider shall ensure that its subcontractor is bound by terms that are materially similar to the terms of this Agreement (including but not limited to Sections 7 and 8 below) prior to subcontracting such obligations. In the event the Service Provider subcontracts any part of its obligations hereunder, or under any Statement of Work, to the Buyer, the Service Provider shall nonetheless remain primarily liable for all of its obligations and those of such subcontractors under the Agreement and under any applicable Statement of Work.
4. ACCEPTANCE OF SERVICES AND DELIVERABLES.
4.1 The Parties shall agree on acceptance criteria for the Services and Deliverables in the applicable Statement of Work.
4.2 Unless otherwise set forth in the applicable Statement of Work, the Buyer will have thirty (30) business days from the date on which the Deliverable is delivered to the Buyer to conduct acceptance testing. If, in the Buyer’s reasonable opinion, the Deliverable conforms to the acceptance criteria, the Buyer shall issue an acceptance certificate to the Service Provider. If, in the Buyer’s reasonable opinion, the Deliverable does not materially conform to the acceptance criteria, the Buyer shall promptly the notify Service Provider of such finding in sufficient detail as to enable the Service Provider to identify the non-conformance with the acceptance criteria. The Service Provider shall, within a reasonable time, but no later than 30 days following such notification, modify the Deliverable so as to rectify such non-conformance. If the Service Provider is unable to remedy any non-conformance as contemplated herein, the Buyer shall be entitled to, and Service Provider shall promptly provide, in addition to any other rights it has, a refund of all amounts paid in respect of such Deliverable or any related Deliverables solely and directly from the Service Provider.
4.3 If no written notification of non-conformance is provided by the Buyer within thirty (30) business days following the delivery of the Deliverable for acceptance testing, the Deliverable shall be deemed accepted by Buyer.
5. PAYMENTS.
5.1 Buyer shall pay Service Provider for its performance of Services and provision of the Deliverables in accordance with the terms of this Agreement and the agreed price set forth in the Statement of Work. ITeXchange shall raise invoices to the Buyer on behalf of the Service Provider and the Buyer must pay ITeXchange as per the instructions in the invoice raised by ITeXchange. Irrespective of the payment terms you agree with the Service Provider under this Agreement, the monies payable under this Agreement to the Service Provider must be routed through our payment mechanism only. Buyer agrees and acknowledges that it will not remit any amounts towards fees or payments of any sort to the Service Provider unless that money has been released by Buyer to ITeXchange in order to make such payment.
5.2 The Statement of Work shall set out the cost reimbursement mechanism to be used in the event that Service Provider’s personnel are required to travel to a Buyer location or any other location in order to deliver the Services.
5.3 The Service Provider shall upload a copy of the invoice on the ITeXchange platform, (www.ITeXchangeWeb.com) on the completion of a milestone as specified in the applicable Statement of Work if the Services are being provided on a fixed price basis, or monthly, if the Services are being provided on a time and materials basis. The ITeXchange platform will notify the Buyer immediately of the invoice and request for approval.
5.4 The Buyer shall notify the Service Provider and ITeXchange in writing of whether it is accepting or disputing an invoice no later than seven (7) days from the date of receipt of invoice. In the event the Buyer is disputing an invoice, the Buyer shall state the reasons for it doing so as part of its notification of dispute together with the part of the invoiced amount that is being disputed. Any part of the invoiced amount that is not disputed shall become payable according to the terms of this Agreement without any further approval from the Buyer.
5.5 ITeXchange shall make payments to the Service Provider against an invoice from the amounts held in deposit by it upon receiving the approval for the invoice from the Buyer on the ITeXchange platform. Such payments shall be made after deducting any amounts payable by the Service Provider to ITeXchange pursuant to the Service Provider Agreement entered into between ITeXchange and the Service Provider. In the event of a disputed invoice, ITeXchange shall only make payments against the undisputed portion of such invoice, net of any amounts payable to it by the Service Provider as set forth above. ITeXchange shall make all payments required under this Section 5 to the Service Provider no later than seven (7) days after its receipt of approval for the relevant invoice or undisputed part thereof from the Buyer.
5.6 Buyer shall reimburse Service Provider for reasonable, documented (receipts) expenses incurred while performing Services, provided prior written approval for such expenses is obtained from the Buyer.
5.7 The agreed prices are inclusive of all taxes except as follows. The Buyer shall be liable for all transaction taxes on the Services and Deliverables provided under this Agreement. Such transaction taxes shall include but are not limited to sales tax, excise tax, value added tax (VAT), goods and services tax (GST), consumption tax, business tax and similar taxes. The Service Provider shall separately state, where applicable, transaction taxes on the invoice. The Service Provider shall not charge the transaction taxes if the Buyer provides an exemption certificate to the reasonable satisfaction of the Service Provider and which is acceptable to the taxing authorities. In the event that the Service Provider does not charge transaction taxes and the tax authorities subsequently opine that the Service Provider should have charged such taxes, the Buyer shall pay such taxes as required by the authorities.
6. COMPLIANCE WITH LAWS
6.1 Each party shall comply with all laws and regulations specifically applicable to their provision or receipt of Services and Deliverables respectively under the Agreement.
6.2 The Buyer shall include all compliance requirements, including but not limited to all laws, regulations, government or regulatory approved codes of practice or orders and all similar or analogous requirements that the Buyer wishes the Service Provider to comply with in the performance of Services and the creation of the Deliverables in the Statement of Work (“Applicable Laws”).
6.3 In the event that there are any changes in law or regulations applicable to this Agreement, including but not limited to changes in Applicable Law, which adversely affect the Service Provider’s ability to render the Services and Deliverables (a “Regulatory Change”), the Parties shall use their commercially reasonable efforts to agree upon an amendment to the Statement of Work (using the Change Order mechanism) in order to address the impact of such Regulatory Change on the Services and Deliverables.
6.4 The Parties shall not directly or indirectly export or re-export any software and technical data (including any direct product thereof) or undertake any transaction or service that may be subject to Export Controls Laws in violation of any such laws or regulations. The Parties acknowledge that under applicable United States law, information, data and technology provided or disclosed by the Buyer may be considered exported as soon as it is received by a foreign national (including any person who is not a United States citizen or permanent resident), even if such person is resident in the United States. The Buyer shall obtain the export licenses and approvals, if any, necessary to provide information to the Service Provider and its employees and contractors.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 The Service Provider agrees that all Deliverables and Services provided are “work for hire”. The Buyer shall, upon creation, exclusively own all Intellectual Property Rights in the Deliverables and any materials created in provision of the Services including in any inventions, ideas, methodologies, routines, algorithms, designs, databases, code bases which are originated, conceived, written or made in the performance of the Services or development of the Deliverables. To the extent any such Intellectual Property Rights in the Deliverables are deemed not to be “works for hire” under applicable law, the Service Provider hereby irrevocably assigns all such Intellectual Property Rights to the Buyer and agrees to undertake all additional acts reasonably necessary to effect such assignment, including execution of further assignments, registrations, and other documents and instruments, promptly upon request by the Buyer, at Buyer’s cost, to ensure the assignment of such rights to the Buyer and perfection of Buyer’s interest in such Intellectual Property Rights.
7.2 To the extent, that the Intellectual Property Rights contemplated in Section 7.1 do not automatically vest with the Buyer, by operation of law or the terms of this Agreement, the Service Provider shall hold them in trust for the Buyer until such rights shall be fully and absolutely vested in the Buyer pursuant to Section 7.1 above.
7.3 In the event that any prior intellectual property of the Service Provider is embedded into the Deliverables, the Service Provider hereby grants to Buyer, at no additional cost, a non-exclusive, royalty free, perpetual license to use and modify such prior intellectual property embedded in such Deliverable as is necessary to enable Buyer’s use of such Deliverables. Nothing contained in this Section 7.3 or elsewhere in this Agreement shall be construed to grant Buyer any right to use or exploit such prior intellectual property in its stand-alone form separate and apart from the Deliverables.
7.4 The Service Provider shall procure that all employees, subcontractors, consultants, and other personnel who participate in performance of the Services hereunder irrevocably and unconditionally assign and waive in favour of Buyer any rights, title or interests in and/or to the Deliverables or any other work product contemplated herein, and all Intellectual Property Rights therein, immediately on creation and agree in writing to such obligations.
8. CONFIDENTIALITY
8.1 Each Party receiving information hereunder (each, a “Receiving Party”) shall maintain the secrecy of the other party’s (each a “Disclosing Party”) Confidential Information and shall not permit the disclosure or duplication of Confidential Information to any third party other than an employee, agent or representative of the Receiving Party who needs such information for the performance of the obligations hereunder and who is subject to written obligations substantially similar to those set forth herein to maintain the confidentiality of such Confidential Information. The Receiving Party shall ensure that it maintains Confidential Information using security practices and procedures which conform to generally accepted industry standards.
8.2 The secrecy of the Confidential Information disclosed pursuant to this Agreement shall be maintained for a period of five (5) years following the expiry of this Agreement, provided trade secrets shall be kept secret for such period as protected under law. The Receiving Party may disclose Confidential Information where the contemplated disclosure is required by applicable law, by a court of competent jurisdiction or by a regulatory body or stock exchange with authority over its business or securities, provided that, where permitted by applicable law, the Receiving Party gives the Disclosing Party sufficient notice of the disclosure, uses reasonable endeavours to cooperate with the Disclosing Party (at the Disclosing Party’s expense) to seek a protective order, and only after such cooperation (if requested by the Disclosing Party) discloses only what it must to comply with such legal obligations.
8.3 If the Receiving Party commits a breach of its obligations related to Confidential Information, in addition to the remedies available to it for breach of contract, the Disclosing Party shall be entitled to seek the remedies afforded it in equity or at law for breach of confidence including injunctive relief without the requirement to post any bond or security.
8.4 Notwithstanding anything here in, information disclosed pursuant to this Agreement shall not be deemed to be Confidential Information if the Receiving Party can show that such information (a) was publicly available prior to this Agreement or is made publicly available by the Disclosing Party without restriction; (b) was rightfully received by the Receiving Party from third parties without accompanying secrecy obligations; (c) was already in the Receiving Party’s possession and was lawfully received from sources other than the Disclosing Party; or (d) was independently developed by the Receiving Party.
9. REPRESENTATIONS AND WARRANTIES
Service Provider represents and warrants that:
9.1.1 The Services will be performed using generally accepted industry standards and practices and the Deliverables shall be provided in a workman like manner.
9.1.2 The Services shall be provided in a timely manner in accordance with the schedule detailed in the Statement of Work.
9.1.3 The Services and Deliverables shall conform to all the agreed specifications as detailed in the Statement of Work.
9.1.4 Neither the Deliverables nor the provision of the Services shall infringe on any third party Intellectual Property Rights.
9.1.5 Its execution and delivery of this Agreement and performance or compliance with the terms of this Agreement will not conflict with, result in a breach of or constitute a default under any agreement to which Service Provider is bound.
9.1.6 To its knowledge, there are no threatened lawsuits, actions or any other legal or administrative proceedings against Service Provider which, if adversely determined against Service Provider, would have a material adverse affect on Service Provider’s ability to perform its obligations under this Agreement or a Statement of Work.
9.2 If, at any time within three (3) months from the date of acceptance of a Deliverable or the performance of the Service, the Buyer notifies the Service Provider in writing that the warranties have been breached, then the Service Provider will, at the Buyer’s discretion, but at Service Provider’s own expense, either remedy that breach within 30 days or refund to Buyer the fees paid for the affected Deliverable and/or Service. The obligation on the Supplier to remedy the breach does not affect any other rights or remedies that the Buyer may have for the Service Provider’s breach of these warranties.
9.3 Save for the representations and warranties set forth in this Agreement, there are no other representations express or implied, and specifically there are no implied representations or warranties of merchantability or fitness for a particular purpose.
10. INDEMNIFICATION.
10.1 Service Provider shall defend, indemnify and hold the Buyer harmless from any claims, loss, damages, liabilities (including reasonable legal costs) arising from (a) any third party claim that any of the Services or Deliverables provided to Buyer by the Service Provider breach or violate any Intellectual Property Rights of any third party, except to the extent that (i) such breach or violation subsists in materials or information provided to the Service Provider by Buyer or (ii) arises as a direct result of specifications or instructions provided by Buyer pursuant to a Statement of Work entered into hereunder, (b) the gross negligence or willful negligence of the Service Provider or its employees and agents (c) any claims made by employees or subcontractors of the Service Provider against the Buyer (d) any breach of the Service Provider’s obligations related to Confidential Information and obligations under Section 8. In addition, should any Services and/or Deliverables become, or in Service Provider’s opinion be likely to become, the subject of a claim, Service Provider shall, at its option and expense, (1) procure for they Buyer the right to make continued use thereof, or (2) replace or modify such so that it becomes non-infringing.
10.2 The Service Provider shall have control over the defense of any indemnified claim at Service Provider’s cost, provided that the Buyer may participate in such defense at Buyer’s expense. The Service Provider shall not, without the prior written approval of the Buyer enter into any settlement or make any admissions which would bind or impact the Buyer’s business in any manner.
11. LIMITATION OF LIABILITY.
11.1 SUBJECT TO SECTION 11.3 BELOW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE FOR ANY LOSS OF PROFITS, BUSINESS, CONTRACTS, OR REVENUES, LOSS OF OPERATION TIME, INCREASED COSTS OR WASTED EXPENDITURE, LOSS OF GOODWILL OR REPUTATION OF THE OTHER, ITS EMPLOYEES OR ANY OTHER PERSON ACTING ON THEIR BEHALF, SPECIAL, INDIRECT, INCIDENTAL PUNITIVE OR CONSEQUENTIAL DAMAGE OF ANY NATURE WHATSOEVER OR HOWSOEVER ARISING OUT OF THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 SUBJECT TO SECTION 11.3 BELOW, THE MAXIMUM AGGREGATE AMOUNT THAT EITHER PARTY CAN RECOVER FROM THE OTHER PARTY AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS AND PROFESSIONAL ADVISORS FOR ALL CLAIMS ARISING FROM, UNDER OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE OR OTHERWISE) WILL IN NO EVENT EXCEED THE FEES PAID AND PAYABLE UNDER THIS AGREEMENT
11.3 The limitations in this Section 11 shall not apply to the indemnity obligations of the Service Provider hereunder or to any claims arising from the Service Provider’s breach of Sections 7 and 8.
12. TERM.
12.1 Notwithstanding the date of signature of this Agreement, the Agreement shall come into force on ______________________.
12.2 The Agreement shall continue unless terminated in accordance with the provisions of this Agreement. Obligations under this Agreement which by their nature would continue beyond the termination, cancellation or expiration of this Agreement (including but not limited to the confidentiality obligation under Section 8 of this Agreement) shall survive termination, cancellation or expiration of this Agreement.
13. TERMINATION.
13.1 Either party has the right to terminate this Agreement if the other breaches or commits a default of any obligation and has not cured such breach within 30 (thirty) calendar days after receipt of notice of such default (or such additional cure period as the non- defaulting party may authorize), provided, however, termination is immediate if there is a breach of confidentiality, or for any other breach which is incapable of cure.
13.2 The Buyer may terminate this Agreement for convenience upon sixty (60) days written notice to the Service Provider.
13.3 Either party may terminate this Agreement by written notice to the other and may regard the other party as in default of this Agreement, if the other party becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, or becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or has wound up or liquidated, voluntarily or otherwise. In the event that any of the above events occurs, that party shall immediately notify the other party of its occurrence.
13.4 Upon the termination of this Agreement by either party, or its expiration, the Service Provider shall immediately provide the Buyer with all Deliverables which are completed and those which are work in progress, including any other work products which are conceived or originated in the provision of the Services.
13.5 Following termination of this Agreement by either Party, Buyer shall pay to Service Provider charges for all Services and Deliverables provided to Buyer up to the date of termination.
14. FORCE MAJEURE
In the event that either party is unable to perform any of its obligations under this Agreement of Force Majeure Event, the party whose performance has been so affected shall immediately give notice to the other party and shall do everything reasonably possible to resume performance. Upon receipt of such notice, this Agreement shall be immediately suspended. If the period of nonperformance exceeds fifteen (15) days from the receipt of notice of the Force Majeure Event, the party whose ability to perform has not been so affected may by giving written notice terminate this Agreement.
15. NOTICES
All notices to be given in connection with this Agreement shall be effective upon receipt, shall be made in writing and shall be sufficiently given if personally delivered or if sent by courier or other express mail service, postage prepaid, addressed to the party entitled or required to receive such notice at the address for such party as follows:
To Buyer:
__________________________
__________________________
__________________________
__________________________
To Service Provider:
______________________
Attention: ____________
_______________________
Either party may change such address by notice to the other party.
16. GENERAL PROVISIONS
Non-Waiver and Amendment. No waiver, alteration, modification, or cancellation of any of the provisions of this Agreement shall be binding unless made in writing and signed by both Buyer and Service Provider. The failure of either Buyer at any time or times to require performance of any provision hereof shall in no manner affect the right at a later time to enforce such provision. No remedy referred to in this Agreement is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to herein or otherwise available at law, in equity or otherwise.
16.2 Assignment. Buyer may in its discretion assign the Agreement upon notice to the Service Provider. Service Provider shall not assign, transfer or offer as security any right or interest or delegate any obligation arising under this Agreement without the Buyer’s written approval.
16.3 Independent Contractors. It is expressly understood that Buyer and Service Provider are independent contractors, and that neither has the authority to bind the other to any third person or otherwise to act in any way as the representative of the other, unless otherwise expressly agreed to in writing signed by both parties hereto.
16.4 Non solicit: Neither Party shall during the term and for a period of twelve (12) months after its expiration or termination of this Agreement, without the prior written consent of the other Party, directly or indirectly solicit or entice away from the employment of the other Party any person(s) employed (or any person(s) who have been so employed in the preceding six (6) months) by such other Party in the provision of the Services. The Parties shall only communicate with the employees of the other Party via officially approved means of communication such as the official email and Skype ID provided, unless there is an approval in writing to the contrary. Nothing herein shall apply to any unsolicited responses by employees of either Party to general recruitment advertising.
16.5 Disclaimer: The Parties hereby acknowledge and agree that ITeXchange has no obligations whatsoever under this Agreement and shall not have any liability in any form or manner for the performance by the Parties of their respective obligations under this Agreement. The Parties shall not to seek to join ITeXchange or its affiliates, officers, employees, agents and professional advisors as a party in the event of a Dispute. In addition, the parties acknowledge that ITeXchange has not participated in the negotiation of this Agreement or advised either party in connection with its entering into this Agreement and that this Agreement is a product of the discussions and negotiations of the Parties. ITeXchange shall be an intended third party beneficiary of this Section 16.4.
16.6 Governing Law: This Agreement is governed by the laws of the state of ______________________ which apply to the interpretation of this Agreement and to any claims for breach of it, regardless of conflict of laws principles.
16.7 Dispute Resolution: In the event of any dispute, claim or controversy arising out of or in connection with this Agreement (each a “Dispute”), the Parties will attempt in good faith to resolve such Dispute through negotiations between them. Where the parties are unable to resolve a Dispute by means of negotiation, such Dispute shall be submitted to JAMS, or its successor, for mediation, in accordance with the then applicable JAMS mediation rules. In the event the mediation fails to resolve the Dispute, the Parties irrevocably consent to the state or U.S. federal courts located in the state of ____________________having jurisdiction over such Dispute.
16.8 Publicity: Neither Party shall use the other Party’s names, logos, service marks, trade names or trademarks or refer to the other Party directly or indirectly in any media release, public announcement, or public disclosure relating to this Agreement, including in any promotional, advertising or marketing materials, customer lists or business presentations without the prior written consent of the other Party prior to each such use or release.
16.9 Entire Agreement. This Agreement, including the General Terms and the Statement of Work, sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes all prior oral and written agreements, understandings, representations, conditions and all other communications relating thereto.
IN WITNESS WHEREOF, the parties have executed this Agreement by their authorized representatives as of the date first written above.
EVALUATION
By completing and sending us your response to the information requested in a full and accurate manner (“Response”) and executing the ITeXchange Terms and Conditions for Service Providers, you are stating that you want to participate in the ITeXchange service provider evaluation program (“Evaluation Program”). If you represent a company that is interested in providing Services you shall be considered as a “Service Provider”.
The Evaluation Program has three stages as set forth below. At each stage, we will make a determination, in our sole and absolute discretion, if you meet the criteria we have established that Service Providers must meet in order to progress to the next stage of the Evaluation Program. You must provide us with full and accurate information for each information request we make during the Evaluation Program.
An Onsite Assessment is typically done prior to engaging with a new Buyer. We will use the Onsite Assessment to verify some or all of the information you provided to us during the earlier two stages of the Evaluation Program as well as to get any additional information we need about your capabilities regarding specific projects that Buyers have informed us about. Onsite assessment will be charged for by ITeXchange as explained in the “ITeXchange Terms and Conditions for Service Providers”. If we visit your offices as part of an Onsite Assessment requested by the Buyer, you will provide our representatives with the appropriate level of access in order for them to complete their part of the evaluation. Here is a non-exhaustive list of the types of access they will require for their evaluation:
In addition to the above, ITeXchange may also Certify some of its specialist Service Providers on the basis of the information provided including but not limited to their professional certifications, partnerships, key relationships, recruitment and people retention programs, on-going training, new technology adoption, geographic footprint, commercial and pricing terms, responsiveness and immigration processes. Post your empanelment on ITeXchange, we will contact you to inform you about our Certification program and how you can participate in the same.
Results ofService Provider Evaluation
As stated above, following the completion of our Detailed Evaluation, we will notify you when your company profile has been made live on our platform. If your profile has not been made live, we will provide a brief report that gives you feedback on the key issues that prevented your profile from being accepted.
Once you have been empaneled as a Service Provider, we will add you to our list of approved Service Providers for specific industry and technology domains and ask you to create your company profile on our platform. You will:
Provide case studies, and/or client testimonials that demonstrate your capabilities with respect each domain for which you have been selected.
There are a few matters that you need to pay attention to while providing these materials. The first is that these materials are optional and not compulsory but are viewed by Buyers and us and used for determining your eligibility for a project. Secondly, you must have the proper rights to publish everything that you put on ITeXchange. Thirdly and very importantly, you must ensure that everything you publish on your web page is correct and accurate and must confine itself to descriptions of your business and services. Fourthly, you cannot use this web page to say anything about anyone or anything else or to direct the readers to online or offline resources or materials outside ITeXchange. Fifthly, you cannot use the ITeXchange website to denigrate others or to publish any materials that are, in our sole discretion, negative, misleading, slanderous, libelous, rude, impolite, pornographic or otherwise objectionable.
We will not take any responsibility for determining whether or not the information you provide is correct and accurate. Further, under no circumstances can you publish any materials on ITeXchange that in any form or manner violate or breach any third party’s Intellectual Property rights. This means that if you are including any third party Intellectual Property, you must have the proper permission of that third party to publish such materials. For example, if you are publishing a case study of a project you implemented for a client, please ensure that you have the client’s permission to use their name and to describe the work you do for them. If we determine, in our sole discretion, that any materials you publish violate any of our standards, we will remove your materials from all ITeXchange resources without any notice to you. The same will apply if we receive a duly substantiated complaint from a third party.
Intellectual property and other proprietary rights (“Intellectual Property”) will have the broadest possible meaning for the purpose of the Service Provider Agreement and includes, without limitation, all patent rights; copyrights, moral rights and all other rights associated with works of authorship; trademarks; rights relating to the protection of trade secrets and confidential information; and any right similar to those described here.
If your Service Provider enrolment is terminated, you have to wait for a minimum period of six months before you can re-apply to be enrolled as a Service Provider. The re-enrolment process is the same as the initial enrolment process described above.
SELLING SERVICES ON ITeXchange:
Any person, company or other organization or entity which is interested in using ITeXchange to procure one or more of the information technology services that service providers offer on ITeXchange is termed a “Buyer”. If you represent a company that is interested in providing Services you shall be considered as a “Service Provider”. Once a Buyer us that they have an information technology project (“Proposed Project”) for which they want proposals from Service Providers, we will work with the Buyer till we are satisfied that we have enough details about the Proposed Project to publish a set of specifications on ITeXchange. We will also select a group of Service Providers from the eligible pool of all Service Providers who have the industry and technology domain capabilities needed for the Proposed Project. Only those Service Providers who are shortlisted by us will be allowed to view the Proposed Project specifications.
Once we notify the shortlisted Service Providers about the Proposed Project, each such Service Provider will be allowed to review the applicable specifications and seek further details and clarifications. If you are shortlisted for a Proposed Project, you will have a set time frame within which to seek all of the clarifications that you want on the Proposed Project Specifications. The clarification period will vary from Proposed Project to Proposed Project depending on the Buyer’s project timelines and the complexity of the Proposed Project. Please note the Buyer name and other contact details will not be revealed to the Service Provider until such time that the Service Provider’s proposal has been accepted by the Buyer and contracting discussions have been initiated.
After the expiry of the clarification period, each shortlisted Service Provider will have to either notify us of their intention not to bid for the Proposed Project or prepare and submit a fully responsive proposal within the period allotted for submission of proposals.
Each Proposal that is submitted will be reviewed. We will provide you with an opportunity to walkthrough your proposal so that it is evaluated in an informed manner. As part of the evaluation process, you must provide us with timely and appropriate clarifications so that we have the information we need about your proposal .
The Proposal would be submitted by the Service Provider in a format provided by the ITeXchange or the one that is available on the ITeXchange website. Please note that the Service Provider name and other contact details will not be revealed to the Buyer until such time that the Service Provider’s Proposal has been accepted and contracting discussions have been initiated.
We can reject any Proposal at any stage of the evaluation if we feel that the proposal does not meet the Buyer’s specifications or that the terms of the proposal do not meet the Buyer’s expectations in this regard. We can also reject Proposals if we reasonably believe that there is anything about the Proposal or your conduct that is unethical, fraudulent, deceptive,misleading, is analogous to cartelization or otherwise hindering the proper functioning of the ITeXchange marketplace or otherwise not acceptable as a good business practice. If your Proposal is rejected, we will provide you with a reasonable amount of details on why your Proposal was rejected.
OUR ABILITY TO REJECT PROPOSALS AT ANY STAGE ACTING ON BEHALF OFA BUYER OR IN OUR CAPACITY IS A KEY CONDITION TO ALLOWING YOU TO ENROL AS A SERVICE PROVIDER AND SUBMIT PROPOSALS. BY ENROLING AS A SERVICE PROVIDER WITH ITeXchange YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE SPECIFICALLY STUDIED THIS REQUIREMENT AND ACCEPT IT WITHOUT ANY RESERVATIONS WHATSOEVER.
The Service Provider whose Proposal is finally selected will then enter into discussions on the commercial and other terms which need to be discussed and agreed. Once the details have been agreed upon, Service Provider will submit all of the agreed details, including final specifications, commercial terms and the respective rights and remedies of each party on the ITeXchange Portal and this will be designated as a live project (“Project”).
DELIVERING A PROJECT:
If you are a selected Service Provider, you must comply with the following requirements at the appropriate stage of the Project’s lifecycle:
If a change request is raised for additional features, interfaces or functionalities or requires modification to agreed functionality (“Change Request”), you must:
We will actively solicit feedback from both the Buyer and you during the Project implementation process and upon completion of the Project. Our assessment of the feedback will be reflected in your ITeXchange rating.
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Service Provider raises the invoice to Buyer on the ITeXchange platform
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ITeXchange platform sends the Service Provider invoice to the Buyer
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Buyer reviews & approves invoice on the ITeXchange platform
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Buyer transfers fund into ITeXchange US Bank account
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ITeXchange releases funds to the Service Provider in USD post Service Fee adjustment
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*All financial information of the project is available to view on the ITeXchange platform including
ITeXchange invoices, Service Provider invoices and credit/ debit notes.
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