1. Entire Agreement. The scope and terms associated with the Services along with these General Terms and Conditions are together one agreement between Insight and Client, collectively referred to as the “SOW”. This SOW, together with all attachments, schedules, addenda and exhibits, forms the entire agreement between the parties and supersedes any prior representations or agreements, oral or written, and all other communications between the parties relating to the subject matter of this SOW. Any conflicting additional or different terms contained in any other agreement, invoice or statement of work, as the case may be, are expressly rejected. In the event of a conflict between these General Terms and Conditions, and Special Terms, Conditions and Assumptions under the Statement of Work, the Special Terms, Conditions and Assumptions will govern.
2. Term. This SOW begins on the date last signed by the Authorized Representative of each party (the “Effective Date”) and will expire upon the completion of the Services or as otherwise provided under Section 3 below.
3. Termination. Insight or Client may terminate this SOW with or without cause with 30 days prior written notice to the other party. Termination does not relieve Client's duty to pay for Services performed, or fees or expenses incurred, in accordance with this SOW.
4. Invoicing/Payment. Services will be invoiced in accordance with this SOW. Client must pay all undisputed invoices in full within 30 days of the invoice date, unless otherwise specified under the SOW Special Terms, Conditions and Assumptions. All payments must reference the invoice number. Unless otherwise specified, all invoices shall be paid in the currency of the invoice.
(a) Credit/Late Payment. Insight retains the right to decline or extend credit and to require that the applicable purchase price be paid prior to performance of Services based on changes in Insight’s credit policies or Client’s financial condition and/or payment record. Insight reserves the right to charge interest of 1.5% per month or the maximum allowable by applicable law, whichever is less, for any undisputed past due invoices. Client is responsible for all costs of collection, including reasonable attorneys' fees, for any payment default on undisputed invoices. In addition, Insight may terminate all further work if payment is not received in a timely manner.
(b) Taxes. Federal, provincial and local sales, use and excise taxes and all similar taxes and duties, (excluding taxes based on Insight’s income, assets or net worth), are the sole responsibility of Client. Client may provide Insight a tax exemption certificate, which will be subject to review and acceptance by Insight.
5. Services.
(a) Intellectual Property Rights. Insight retains all right, title and interest in any pre-existing intellectual property that is owned by Insight (“Insight IP”), and which may be used in carrying out the Services, including any modifications or improvements made to Insight IP during or as a result of the Services to be performed under this SOW. Except for Insight IP and upon payment in full of all amounts due Insight, all documents, drawings, specifications, information, patents, patent applications, inventions, developments or processes or any copyrightable material originated and developed by Insight specifically for Client as part of the Services to be performed by Insight under this SOW ("Work Product") shall be owned by Client. Insight hereby grants Client a worldwide, non-exclusive, royalty-free, perpetual, without the right of sublicense, license to use Insight IP in the course of Client’s internal, business operations.
6. Limited Service Warranty. Insight represents and warrants that:
(a) It has the full power and authority to enter into this SOW;
(b) It has all other rights necessary for the performance of its obligations under this SOW, without violating any rights of any other party;
(c) Services performed by Insight will: (i) be performed in a timely, competent, professional and workmanlike manner; (ii) substantially conform to the written specifications under this SOW for 30 days from completion, or for such other warranty period as may be indicated under the Special Terms, Conditions and Assumptions of this SOW; (iii) be in compliance with all laws, rules and regulations applicable to Insight’s performance under this SOW; and
(d) Warranty Disclaimer. THE EXPRESS WARRANTIES IN THIS SECTION 6 ARE IN LIEU OF, AND INSIGHT EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES IN RELATION TO THE SERVICES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE TO THE EXTENT PERMITTED IN LAW. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE WARRANTY PERIOD.
Insight will have no obligation with respect to any warranty Claim if the Claim is the result of damage caused by unauthorized modification, or any abuse or misuse by Client or any third party not performing under the direction of Insight, or damage caused by disaster such as fire, flood, wind or lightning.
7. Remedies. THE FOLLOWING ARE THE PARTIES' RESPECTIVE SOLE AND EXCLUSIVE OBLIGATIONS, AND SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO ANY ACTION FOR BREACH OF LIMITED WARRANTY UNDER THIS SOW.
(a) Services. Client’s remedy for non-conforming Services discovered upon completion or during the warranty period shall be the re-performance of any deficient Services at Insight’s expense. If Insight is unable to remedy any deficient Services within 30 days of notice or such additional time as may be agreed upon by the parties, Insight will, at its option, provide a credit or refund of any fees paid for the specific non-conforming Services. No re-performance will extend any warranty period.
(b) Credits. Any credits issued to Client by Insight for any reason must be applied by Client within 2 years from the date the credit is issued. If not used within such period, credits will automatically expire.
8. Confidential Information. Both parties will maintain in confidence and safeguard all confidential information, as defined in this paragraph, of the other party, its affiliates, and its customers. “Confidential Information” means any information that is marked or otherwise identified as confidential or proprietary at the time of disclosure and includes, but is not limited to, trade secrets, know-how, inventions, techniques, data, customer lists, personal information, financial information, sales and marketing plans of the other party, its affiliates, or its customers. Both parties recognize and acknowledge the confidential and proprietary nature of any Confidential Information and acknowledge the irreparable harm that could result if such Confidential Information is disclosed to a third party or used for unauthorized purposes. Each party agrees to use any Confidential Information only for the purpose of conducting business with each other and their clients in the manner contemplated by this SOW. Both parties will restrict disclosures of any Confidential Information to only those personnel who have a need to know and will bind such personnel to obligations of confidentiality to the same extent that each party is bound by this SOW. Upon request of the owner of Confidential Information, the other party will promptly return all materials incorporating any Confidential Information and any copies. The obligations under this paragraph do not apply to information that: (i) is or becomes generally known or in the public domain through no act or omission of the other party; (ii) was lawfully in Insight’s or Client’s possession without restriction as to use or disclosure before its receipt from the other party; (iii) is received from, or was made available to, a third party without any obligation of confidentiality;
(iv) was independently developed; (v) is otherwise permitted to be disclosed under this SOW; (vi) is disclosed with the prior written consent of the disclosing party; or (vii) is required to be disclosed in any civil or criminal legal proceeding, regulatory proceeding or any similar process, however, the party required to make the disclosure under the law shall give prompt notice of this to the other party prior to such disclosure so that the other party may seek an appropriate protective order or give its written consent to such disclosure.
9. Indemnification.
(a) General. Each party will indemnify, defend and hold harmless the other party, its officers, directors, employees, agents, and affiliates from and against any claims, demands, loss, damage, or expense, including reasonable attorney fees, (collectively, “Claims”) relating to bodily injury or death of any person or damage to tangible personal property to the extent proximately caused by the negligence or willful acts or omissions of the Indemnifying Party, its officers, directors, employees, agents, and affiliates in performance of this SOW.
(b) Procedures. In the event that any Claim is made against a party or other entity entitled to indemnity un- der this Section (an "Indemnified Party"), the Indemnified Party shall: (i) give prompt written notice of such Claim to the party that has an indemnity obligation (the "Indemnifying Party"); and (ii) provide reasonable assistance and cooperation in the defense and settlement of any Claim or legal proceeding. Notwithstanding the foregoing, if the Indemnifying Party fails to assume its obligation to defend, the Indemnified Party may do so to protect its interests and seek reimbursement from the Indemnifying Party.
10. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF INCOME, PROFITS, DATA, OPERATIONAL EFFICIENCY, USE OR INFORMATION,) ARISING UNDER THIS SOW REGARDLESS OF THE FORM OF ACTION OR THEORY OF RELIEF, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AMOUNT OF DIRECT DAMAGES RECOVERABLE FROM A PARTY UNDER THIS SOW IS LIMITED TO THE TOTAL AMOUNT PAID OR TO BE PAID BY CLIENT FOR SERVICES PERFORMED UNDER THIS SOW.
THE PRECEDING EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL NOT APPLY TO: (1) PAYMENT OF AMOUNTS DUE TO INSIGHT, NOR TO (2) EITHER PARTY’S INDEMNITY OBLIGATIONS UNDER SECTION 9 OR BREACH OF ITS EXPORT OBLIGATIONS UNDER SECTION 15. IN ADDITION, NO ACTION, WHETHER FOR INDEMNIFICATION OR OTHERWISE, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS SOW, MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER THE DAMAGE, LOSS OR EXPENSE OCCURRED.
11. Insurance. Insight will carry adequate insurance coverage to provide Workers Compensation insurance as required by applicable law, including Employer's Liability insurance with limits of at least $300,000 each accident; comprehensive Automobile Liability insurance with limits of not less than $1,000,000 combined single limit; and comprehensive General Liability insurance with limits of not less than $1,000,000 each occurrence.
12. Notices. Any notice required or permitted to be given must be in writing and is considered received: (a) when personally delivered; (b) one business day after having been sent by overnight mail via a professional carrier; or when sent via facsimile or electronic mail, receipt confirmed, with an original document placed in the mail within 5 business days of the date of that facsimile or electronic mail. All business communication will be sent to the addresses set forth above or to other persons or addresses as either party designates in writing to the other. Legal notices must be sent with a copy for Insight addressed to: Insight, 6820 South Harl Avenue, Tempe, AZ 85283, Attn: Legal Department.
13. Governing Law. This SOW will be governed by and interpreted in accordance with the laws of the Province of Ontario, which shall have exclusive jurisdiction for all judicial proceedings. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this SOW.
14. Non-Solicitation & Non-Hire. Client agrees that during the time that Insight is rendering Services under the terms of this SOW and for one year following the cessation of such Services, Client will not directly or indirectly solicit, offer employment or hire any current or former employee/consultant involved in the performance of this SOW employed or hired by Inisght. This provision does not restrict the right of either party to solicit or recruit generally in the media and does not prohibit either party from hiring an employee of the other who answers any advertisement or who otherwise voluntarily applies for hire without having been initially personally solicited or recruited by the hiring party.
15. General. Any subsequent additions, deletions or modifications to this SOW are not binding unless agreed upon in writing by authorized representatives of both parties. If any part of this SOW is for any reason found to be invalid, illegal or unenforceable, all other parts will still remain in effect. A delay or failure to exercise or partially exercise any right under this SOW does not operate as a waiver, nor will it preclude future exercise of that right or permit, or sanction any subsequent breach of any term or condition. Neither party may assign its duties or rights under this SOW, whether by operation of law or otherwise, except with the other party’s prior written consent; provided that Insight will have the right to assign this SOW to an affiliate or corporate successor. Insight may subcontract any or all of its obligations hereunder to one or more qualified parties without Client’s prior consent, unless otherwise restricted in this SOW. Insight is not responsible for default or delays caused by Client’s failure to provide accurate instructions, information, access to facilities or suitable product or application environment. Neither party will be liable for any delays in the performance of this SOW due to circumstances beyond its control, including but not limited to acts of nature, acts of government in its sovereign or contractual capacity, national emergencies, acts of terrorism, transportation delays, labor disturbances, work stoppages, material shortages or loss of electrical power, telecommunications or similar infrastructure. Client represents and warrants that no technical data will be exported under this SOW except in compliance with all requirements of the International Traffic in Arms Regulations (ITAR) and Export Administration Regulations (EAR) or any other applicable laws or regulations. The provisions of this SOW, which by sense and content are intended to survive, including but not limited to the sections related to payment, warranties, remedies, indemnification, confidentiality and limits of liability, will survive the expiration or termination of this SOW. Insight is an independent contractor to Client. No personnel employed or engaged by Insight to perform the Services for Client will be considered Client's employees, agents, partners, joint venture partners, or franchisors. Insight has sole responsibility for the direction of its employees and has the right to fire, hire, suspend, layoff, transfer or reassign employees at will without the consent of Client.
16. English. The parties acknowledge that they have requested and consented that this agreement and all documents, notices, correspondence and legal proceedings consequent upon, ancillary or relating directly or indirectly hereto, forming part hereof or resulting herefrom, be drawn up in English.
Les parties reconnaissent qu'elles ont exigé et consenti à ce que cette convention ainsi que tous documents, avis, correspondance et procédures légales consécutifs à, ayant directement ou indirectement avec, faisant partie ou découlant de cette convention, soient rédigés en anglais.