THIS CONSULTING SERVICES AGREEMENT (the “Agreement”) is between Volt Active Data, Inc., aka “Volt”, a Delaware corporation having its principal place of business at 54 Middlesex Turnpike, Suite 203, Bedford, MA 01730 and “Company”, having entered an order form (“Order Form”) with Volt governed by this Agreement (each a “Party” and together the “Parties”). This Agreement shall be effective as of the date the Order Form referencing this Agreement is last signed by the Parties.
1. THE SERVICES
1.1 Volt will provide the consulting services described in the Order Form and, if applicable, one or more Statements of Work to such Order Form (such services being referred to as “Services”). Any Statement of Work shall be incorporated into the Order Form and deemed a part of such Order Form.
1.2 Each Order Form shall include, at a minimum, the dates of Services and the fee for Services, the deliverables, if any (“Deliverables”), and, if a Statement of Work is incorporated into the Order Form, a description of the Services to be performed and any additional terms mutually agreed by the parties. If a provision contained in an Order Form or incorporated Statement of Work conflicts with a provision in this Agreement, the provision in the Order Form shall govern, but only as it relates to the details of the Services listed in that particular Order Form. All Order Forms shall be signed by Company and Volt and shall become a part of this Agreement.
1.3 All Services will be provided on a remote basis unless otherwise agreed in writing.
2. TERM OF AGREEMENT
2.1 This Agreement will begin on the Effective Date of the Order Form and will continue for the duration set forth in the Order Form, or until terminated as described in Section 8 (Termination).
3. VOLT RESPONSIBILITIES
3.1 Volt will provide the Services in a professional and workmanlike manner in accordance with generally accepted industry standards. Volt will have appropriate agreements with its employees and subcontractors to enable it to comply with its obligations under this Agreement.
4. COMPANY RESPONSIBILITIES
4.1 Company agrees to provide a suitable working environment for Volt as necessary. It also agrees that its personnel will respond in a timely manner to inquiries from Volt relating to the Services to be performed under any Order Form. Company acknowledges and agrees that Volt’s performance is dependent in part on Company’s actions. Accordingly, any dates or time periods relevant to the performance of any Services by Volt shall be extended to account for any delays due to Company.
5. CHARGES AND PAYMENT
5.1 CHARGES; EXPENSES. Charges for the Services will be on a daily basis unless otherwise specified in an Order Form.
5.2 INVOICES; PAYMENT. Volt will invoice Company as specified within the Order Form, and Company shall pay such invoiced amounts within the payment terms specified in the Order Form. If Company fails to make payments when due, Volt will have the right to terminate Services immediately, in addition to its other rights.
5.3 GENERAL. Company shall pay all amounts due under this Agreement to Volt in U.S. dollars. Volt may charge interest on overdue amounts at the rate of 1.5% per month or the highest lawful rate, whichever is less. Each Party shall be responsible for the payment of its own tax liability arising from this transaction.
6.1 Company shall completely and exclusively own all of the Deliverables including without limitation, all rights (including intellectual property rights), title and interests therein. Volt agrees to assign and hereby assigns to Company all right, title, and interest to the Deliverables throughout the world and in any medium. At Company’s request and expense, Volt will take any and all reasonably necessary action and/or execute any document reasonably necessary to perfect, record, establish, or otherwise give effect to Company’s ownership rights in the Deliverables. Volt shall retain all right, title, and interest in and to Volt Property (as hereinafter defined), improvements thereto which are created, used, improved, modified, or further developed by Volt under or during the term of this Agreement which are the product of Volt’s technical expertise possessed and developed by Volt prior to, during, and subsequent to the term of this Agreement and related to Volt’s line of business or the way it performs its services. Volt Property is and shall at all times be the sole exclusive property of Volt. Except as expressly provided in this Agreement, nothing contained in this Agreement is to be construed as a license to Company under any proprietary rights of Volt, including but not limited to patent rights to make, use, sell, reverse engineer, or prepare derivative works based upon Volt Property, or any part thereof, outside the purposes contemplated by this Agreement and an Order Form. “Volt Property” means all processes, know-how, trade secrets, methods, approaches, analyses, improvements, Volt Confidential Information, and other assets, which may include without limitation analytical methods, procedures, and techniques, computer technical expertise and proprietary software, and technical and conceptual expertise, in each case, as created, used, improved, modified or developed by Volt. To the extent any Deliverables incorporate or require the use of Volt Property, Service Provider grants to Client a non-exclusive, irrevocable, non-transferable, non-sublicensable license solely for the purpose of utilizing the Deliverables in conformance with the applicable Order Form. Any such grant of license will be defined in the applicable Order Form.
7. NO SOLICITATION OF EMPLOYEES
7.1 Until one year after Volt has completed any Services, Company agrees that it will not, directly or indirectly, hire, solicit, interfere with or try to entice away any Volt employee.
8.1 TERMINATION. Either Party may terminate this Agreement and the portion of the Order Form relating to the Services immediately upon the other Party’s material breach of this Agreement.
8.2 OBLIGATIONS ON TERMINATION. Upon termination of this Agreement hereunder, Volt shall cease the performance of the applicable Services and will endeavor to mitigate any remaining liability Company may have to Volt or any third parties in connection with the Services. Company will immediately pay Volt for all unpaid fees. Additionally, each Party shall continue to be responsible for safeguarding the other’s proprietary and/or confidential information in accordance with the terms of this Agreement. Each Party shall erase, destroy or return to the other any of the other Party’s proprietary and/or confidential information in its possession. If requested, the other Party shall verify in writing to the requesting Party within thirty days that the requesting Party’s proprietary and/or confidential information has been returned, destroyed, or erased.
8.3 SURVIVAL. In addition to those provisions, which by their nature are intended to survive any termination or expiration of this Agreement, Sections 5 (Charges; Payment), 7 (No Solicitation of Employees), 9 (Limitation of Liability), 10 (Confidentiality) and 11 (General) shall specifically survive such termination or expiration.
9. LIMITATION OF LIABILITY
9.1 NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT OR OTHERWISE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF DATA OR USE OF DATA, OR INTERRUPTION OF BUSINESS. NEITHER PARTY’S LIABILITY HEREUNDER SHALL EXCEED THE FEES ACTUALLY PAID BY COMPANY TO VOLT UNDER THE ORDER FORM FROM WHICH THE CLAIM ARISES DURING THE 12-MONTH PERIOD PRIOR TO THE CLAIM.
10.1 The Parties agree not to permit access to or to disclose the other Party’s Confidential Information except to its authorized employees and contractors who are bound by confidentiality agreements that contain terms that are no less restrictive than those contained in this paragraph, and who need to use or have access to the other Party’s Confidential Information as permitted by this Agreement. A Party shall use at least the same degree of care in protecting the other Party’s Confidential Information as such Party generally exercises in protecting its own most valuable proprietary information (which in no event shall be less than reasonable care) and shall inform its employees and contractors having access to the Confidential Information of its confidential nature. “Confidential Information” includes documents, data, software, and information which, however provided, including but not limited to orally or visually, by one Party to the other, are clearly identified as “Confidential” or “Proprietary”, marked with a similar legend, or are such that a reasonable person would understand to be confidential. However, a receiving Party shall have no obligation of confidentiality with respect to any information which: (a) is already known to the receiving Party at the time of disclosure; (b) is or subsequently becomes publicly available through no wrongful act of the receiving Party; (c) is disclosed to or provided to the receiving Party by a third Party without restriction; or (d) is developed independently by the receiving Party without use of or access to the disclosing Party’s Confidential Information.
11.1 GOVERNING LAW. This Agreement shall be governed in all respects by the laws of the Commonwealth of Massachusetts, USA without giving effect to its conflict of laws principles. The Parties agree to submit to the exclusive jurisdiction of the Massachusetts state and federal courts for any claim relating to this Agreement. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement.
11.2 NOTICES. All notices or reports shall be in writing and shall be delivered by personal delivery, facsimile transmission, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. Notices shall be sent to the parties at the addresses set forth on the Order Form, with a copy to the Volt VP of Finance. or to such other address as either Party may specify in writing.
11.3 NO AGENCY. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the Parties.
11.4 INJUNCTIVE RELIEF. Each Party acknowledges that its breach of Section 10 (Confidentiality) of this Agreement may cause the other Party irreparable damage for which recovery of money damages would be inadequate. Therefore, each Party agrees that the other Party shall be entitled to seek injunctive relief to protect its rights under this Agreement in addition to any other remedies.
11.5 FORCE MAJEURE. Neither Party shall be liable to the other for any failure or delay in the performance of its obligations (except for the payment of money) for any cause that is beyond its reasonable control. If any such failure or delay continues for more than thirty (30) days, the Party awaiting performance reserves the right to terminate this Agreement. For purposes of clarity, this Section 11.5 shall not apply to a Party’s payment obligations hereunder.
11.6 WAIVER. If one Party fails to enforce a provision of this Agreement, it shall not be precluded from enforcing the same provision at another time.
11.7 SEVERABILITY. If any provision of this Agreement is deemed unenforceable or invalid by law or by a court decision, the provision shall be changed and interpreted, if possible. to accomplish the intent of the provision within the constraints of the law. Only that provision, and not the entire agreement, shall be invalidated.
11.8. ASSIGNMENT. Except in the event of a merger, acquisition or sale of all or substantially all of a Party’s assets, neither Party may assign this Agreement, in whole or in part, or any rights or obligations created by it. Any such attempted assignment shall be void.
11.9 NO CONFLICTING TERMS. Volt shall not accept, and this Agreement does not operate as an acceptance of, any different or additional terms and conditions, and this Agreement shall prevail over any such different or additional provisions on any order of Company, or any other writing or instrument.
11.10 PUBLICITY. Neither Party will, without the other Party’s prior written consent, use such other Party’s name, logo, trademark or other commercial designations for any purpose, including by way of illustration but not of limitation, advertising, publicizing, marketing or selling the services and/or products provided hereunder.
11.11 ENTIRE AGREEMENT. This Agreement supersedes all previous agreements, whether oral or written, with respect to its subject matter.