The following Standard Provider Terms and Conditions (the “Agreement”) are made by and between Provider (as defined below) and Illumio, Inc. (the “Client”), and shall govern any and all Statements of Work (as defined below) referring to this Agreement, and shall supersede any and all conflicting terms.
1. Services. The Client and the Provider shall execute one or more statements of work that describe the specific services to be performed by the Provider (each, a “Statement of Work”). Each Statement of Work shall expressly refer to this Agreement, form a part of this Agreement and be subject to the terms and conditions contained herein. A Statement of Work may be amended only by written agreement of each of the parties to this Agreement. The Provider will perform all services described in each Statement of Work (the “Services”) in accordance with the terms and conditions set forth in the applicable Statement of Work and this Agreement.
2. Delivery. The Provider will deliver to the Client the deliverables, designs, modules, software, products, documentation and other materials specified in each Statement of Work (the “Deliverables”), in accordance with the delivery schedule and other terms and conditions as set forth in such Statement of Work.
1. Acceptance. Following Provider’s delivery of any Deliverable, Client (with the assistance of Provider, if so requested) will review, evaluate and/or test each Deliverable in accordance with the procedures identified in the Statement of Work to confirm that the Deliverable satisfies, conform to and operates in accordance with all acceptance criteria, specifications or requirements for such Deliverable, as specified in the Statement of Work (collectively, the “Acceptance Criteria”), as applicable. Client will use its commercially reasonable efforts to review, evaluate and/or test the Deliverable within the time period set forth in the Statement of Work. If the Deliverable fails to satisfy, conform to or otherwise operate in accordance with all applicable Acceptance Criteria, then Client will as promptly as practicable furnish Provider the specific defects in the Deliverable and, if applicable, the modifications to the Deliverable required for the Deliverable to satisfy the applicable Acceptance Criteria. Upon receipt of such a Defect Report, Provider will use its best efforts promptly to modify the Deliverable and re-submit the Deliverable to Client to review, evaluate and/or test in accordance with the terms of this Section. The foregoing procedure will repeat until Client finally accepts or rejects the Deliverable. If Client finally rejects any Deliverable, then Client may terminate the applicable portion of the Statement of Work or, if specified in the Statement of Work, this Agreement, immediately upon written notice to Provider.
2. Payment. As Provider’s sole compensation for the performance of Services, Client will pay Provider the fees specified in the Statement of Work in accordance with the terms set forth therein. Without limiting the generality of the foregoing Provider acknowledges and agrees that, if specified in the Statement of Work, Client’s payment obligation will be expressly subject to Provider’s completion or achievement of certain milestones to Client’s reasonable satisfaction. All fees and other amounts set forth in the Statement of Work, if any, are stated in and are payable in U.S. dollars. Unless otherwise provided in the Statement of Work, Provider will invoice Client on a monthly basis for all fees and expenses payable to Provider. Client will pay the full amount of each such invoice within thirty (30) days following receipt thereof, except for any amounts that Client disputes in good faith. The parties will use their respective commercially reasonable efforts to promptly resolve any such payment disputes.
3. Relationship. Provider is an independent contractor and nothing in this Agreement will be construed as establishing an employment or agency relationship between Client and Provider or any Provider personnel. Provider has no authority to bind Client by contract or otherwise. Provider will perform Services under the general direction of Client, but Provider will determine, in Provider’s sole discretion, the manner and means by which Services are accomplished, subject to the requirement that Provider will at all times comply with applicable law. Provider will report to all applicable government agencies as income all compensation received by Provider pursuant to this Agreement. Provider will be solely responsible for the payment of all compensation to all Provider Personnel, as well as for payment of all withholding taxes, social security, workers’ compensation, unemployment and disability insurance or similar items required by any government agency. Provider personnel will not be entitled to any benefits paid or made available by Client to its employees, including, without limitation, any vacation or illness payments, or to participate in any plans, arrangements or distributions made by Client pertaining to any bonus, stock option, profit sharing, insurance or similar benefits. Provider will indemnify and hold Client harmless from and against all damages, liabilities, losses, penalties, fines, expenses and costs (including reasonable fees and expenses of attorneys and other professionals) arising out of or relating to any obligation imposed by law on Client to pay any withholding taxes, social security, unemployment or disability insurance or similar items in connection with compensation received by Provider pursuant to this Agreement.
4. Liability Insurance. Provider acknowledges that Client will not carry any liability insurance on behalf of Provider. Provider will maintain in force adequate liability insurance to protect Provider from: (a) claims under workers’ compensation and state disability acts; and (b) claims of personal injury (or death) or tangible or intangible property damage (including loss of use) that arise out of any act or omission of Provider or any Provider Personnel.
5. Intellectual Property. Provider will, as an integral part of the performance of Services, disclose in writing to Client all inventions, products, designs, drawings, notes, documents, information, documentation, improvements, works of authorship, processes, techniques, know-how, algorithms, specifications, specimens or samples, hardware, circuits, computer programs, databases, user interfaces, encoding techniques, and other materials of any kind that Provider may make, conceive, develop or reduce to practice, alone or jointly with others, in connection with performing Services, or that result from or that are related to such Services, whether or not they are eligible for patent, copyright, mask work, trade secret, trademark or other legal protection (the “Provider Work Product”). Provider Work Product includes without limitation any Deliverables that Provider delivers to Client pursuant to this Agreement. Provider and Client agree that, to the fullest extent permitted by applicable law, each item of Provider Work Product will be a work made for hire owned exclusively by Client. Provider agrees that regardless of whether an item of Provider Work Product is a work made for hire, all Provider Work Product will be the sole and exclusive property of Client. Provider hereby irrevocably transfers and assigns to Client, and agrees to irrevocably transfer and assign to Client, all right, title and interest in and to the Provider Work Product, including all worldwide patent rights (including patent applications and disclosures), copyright rights, mask work rights, trade secret rights, know- how, and any and all other intellectual property or proprietary rights (collectively, “Intellectual Property Rights”) therein. At Client’s request and expense, during and after the term of this Agreement, Provider will assist and cooperate with Client in all respects and will cause all Provider personnel to assist and cooperate with Client in all respects, and will execute documents and will cause all Provider personnel to execute documents, and will take such further acts reasonably requested by Client to enable Client to acquire, transfer, maintain, perfect and enforce its Intellectual Property Rights and other legal protections for the Provider Work Product. To the extent that Provider owns or controls (presently or in the future) any patent rights, copyright rights, mask work rights, trade secret rights, or any other intellectual property or proprietary rights that may block or interfere with, or may otherwise be required for, the exercise by Client of the rights assigned to Client under this Agreement (collectively, “Related Rights”), Provider hereby grants or will cause to be granted to Client a non-exclusive, royalty- free, irrevocable, perpetual, transferable, worldwide license (with the right to sublicense) to make, have made, use, offer to sell, sell, import, copy, modify, create derivative works based upon, distribute, sublicense, display, perform and transmit any products, software, hardware, methods or materials of any kind that are covered by such Related Rights, to the extent necessary to enable Client to exercise all of the rights assigned to Client under this Agreement.
6. Confidential Information. For purposes of this Agreement, “Confidential Information” means and will include: (a) any information, materials or knowledge regarding Client and its business, financial condition, products, programming techniques, customers, suppliers, technology or research and development that is disclosed to Provider or to which Provider has access in connection with performing Services; (b) the Provider Work Product; and (c) the terms and conditions of this Agreement. Confidential Information will not include any information that: (i) is or becomes part of the public domain through no fault of Provider; (ii) was rightfully in Provider’s possession at the time of disclosure, without restriction as to use or disclosure; or (iii) Provider rightfully receives from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure. Provider agrees to hold all Confidential Information in strict confidence, not to use it in any way, commercially or otherwise, except in performing Services, and not to disclose it to others. Provider further agrees to take all actions reasonably necessary to protect the confidentiality of all Confidential Information including, without limitation, implementing and enforcing procedures to minimize the possibility of unauthorized use or disclosure of Confidential Information.
7. Warranties. Provider represents and warrants that Provider has no pre- existing obligations or commitments (and will not assume or otherwise undertake any obligations or commitments) that would be in conflict or inconsistent with or that would hinder Provider’s performance of its obligations under this Agreement. Provider represents and warrants that Services will be performed in a thorough and professional manner, consistent with high professional and industry standards by individuals with the requisite training, background, experience, technical knowledge and skills to perform Services. Provider represents and warrants that the Provider Work Product will not infringe, misappropriate or violate the rights of any third party, including, without limitation, any Intellectual Property Rights or any rights of privacy or rights of publicity, except to the extent any portion of the Provider Work Product is created, developed or supplied by Client or by a third party on behalf of Client. During the term of this Agreement, Provider will not, directly or indirectly, in any individual or representative capacity, engage or participate in or provide services to any business that is competitive with the types and kinds of business being conducted by Client. Provider represents and warrants that all Provider personnel who perform Services are and will be bound by written agreements with Provider under which: (a) Provider owns or is assigned exclusive ownership of all Provider Work Product; and (b) Provider personnel agree to limitations on the use and disclosure of Confidential Information no less restrictive than those provided in Section 8 hereof.
8. Indemnity. Provider will defend, indemnify and hold Client harmless from and against all claims, damages, liabilities, losses, expenses and costs (including reasonable fees and expenses of attorneys and other professionals) arising out of or resulting from: (a) any action by a third party against Client that is based on a claim that any Services performed under this Agreement, or the results of such Services (including any Provider Work Product), or Client’s use thereof, infringe, misappropriate or violate such third party’s Intellectual Property Rights; and (b) any action by a third party against Client that is based on any act or omission of Provider or any Provider Personnel and that results in: (i) personal injury (or death) or tangible or intangible property damage (including loss of use); or (ii) the violation of any statute, regulation or ordinance.
9. Term; Termination. This Agreement will commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, will remain in force and effect for as long as Provider is performing Services pursuant to the Statement of Work. Either party may terminate this Agreement (including the Statement of Work) if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days following written notice thereof from the non- breaching party. Client may terminate this Agreement (including the Statement of Work) at any time, for any reason or no reason, upon at least ten (10) days written notice to Provider. Upon the expiration or termination of this Agreement for any reason: (a) Provider will promptly deliver to Client all Provider Work Product, including all work in progress on any Provider Work Product not previously delivered to Client, if any; (b) Provider will promptly deliver to Client all Confidential Information in Provider’s possession or control; and (c) Client will pay Provider any accrued but unpaid fees due and payable to Provider pursuant to Section 4 hereof. The rights and obligations of the parties under Sections 6, 7, 8, 9, 10 and 12 will survive the expiration or termination of this Agreement.
10. Miscellaneous. Provider may not assign or transfer this Agreement, in whole or in part, without Client’s express prior written consent. Any attempt to assign this Agreement, without such consent, will be void. Subject to the foregoing, this Agreement will bind and benefit the parties and their respective successors and assigns. Except as expressly set forth in this Agreement, the exercise by Client of any of its remedies under this Agreement will not be deemed an election of remedies and will be without prejudice to its other remedies under this Agreement or available at law or in equity or otherwise. Because the Services are personal and unique and because Provider will have access to Confidential Information of Client, Client will have the right to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief, without having to post a bond or other consideration, in addition to all other remedies that Client may have for a breach of this Agreement at law or otherwise. If any action is necessary to enforce the terms of this Agreement, the substantially prevailing party will be entitled to reasonable attorneys’ fees, costs and expenses in addition to any other relief to which such prevailing party may be entitled. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its body of law controlling conflict of laws. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after depos with a nationally-recognized express courier, with written confirmation of receipt; or (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid. All such notices will be sent to the addresses set forth above or to such other address as may be specified by either party to the other party in accordance with this Section. This Agreement constitutes the complete and exclusive understanding and agreement of the parties with respect to its subject matter and supersedes all prior understandings and agreements, whether written or oral, with respect to its subject matter. In the event of a conflict, the terms and conditions of this Agreement will take precedence over the terms and conditions of any Statement of Work. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by each of the parties hereto. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.