ARTICLE 4 – GENERAL TERMS AND CONDITIONS
ARTICLE 4.1 – TAXES
The Company is solely responsible to pay all applicable taxes from invoice payments made by the Client. The Client agrees that it will not withhold any amounts for payment of taxes. The Client also agrees that applicable sales, use, or property taxes shall be assessed by the Company unless the Client provides the Company with its tax exempt certificate.
ARTICLE 4.2 – EMPLOYMENT RESTRICTIONS
The Client agrees not to hire or attempt to hire employees, consultants, or agents of the Company without the express written consent of the Company for the duration of this Agreement. Further, the Client agrees that it shall not hire or attempt to hire employees, consultants, or agents of the Company for a period of twenty-four (24) months immediately after the termination or completion of this Agreement, without the Company’s written consent. In the event that the Client breaches the terms of this Article, the Client shall pay the Company, as liquidated damages, an amount equal to twice the annual compensation of each such employees, consultants, or agents of the Company.
ARTICLE 4.3 – INSURANCE
The Company will carry general liability insurance and worker’s compensation insurance to perform the activities under this Agreement. In the event that the Company fails to carry such insurance during the existence of this Agreement, the Company will indemnify the Client and hold the Client, its employees and its agents harmless from and against such damages, claims, and expenses resulting from such failure by the Company.
ARTICLE 4.5 – REPRESENTATIONS AND WARRANTIES
The Company shall not make any representations, warranties, or commitments binding the Client without the Client’s prior written consent. The Company does not warrant any hardware and/or software products under this Agreement.
ARTICLE 4.6 – CLIENT CONFIDENTIALITY
In connection with providing the Services: (a) the Company may receive from the Client certain confidential information including, without limitation, information regarding prices, costs, discounts, future plans, business affairs, process information, trade secrets, technical information, customer lists, and employee information (collectively, “Confidential Information”); (b) The Company agrees: (i) not to disclose any of the Confidential Information to anyone in any manner whatsoever without the written consent of the Client, except as otherwise provided herein; and (ii) to refrain from making use of any of the Confidential Information in any manner whatsoever for its own benefit or the benefit of any third party; (c) The Company may disclose the Confidential Information without the prior written consent of the Client only to the extent such Confidential Information is required to be disclosed under applicable law or by a governmental or judicial order, decree, or rule, provided the Company gives written notice to the Client prior to such disclosure; (d) The Company shall be entitled to disclose the Confidential Information without the prior written consent of the Client to such employees, consultants, or agents of the Company who have a clear need to know in order to effect performance of the Services. (e) The Company shall be responsible for ensuring that all persons to whom the Confidential Information is disclosed pursuant to (d) of this Article, shall keep such information confidential and shall not disclose or divulge the Confidential Information to any unauthorized person; (f) Upon termination of this Agreement, the Client may demand the return of any Confidential Information given to the Company at any time upon the giving of written notice to the Company. Within thirty (30) days of such notice, the Company shall return all the original Confidential Information and shall destroy any and all copies and reproductions (both written and electronic) of such Confidential Information in its possession and in the possession of any and all persons to whom such Confidential Information was disclosed pursuant to Clauses (c) or (d) of this Article; (g) Should the Client not demand the return of any Confidential Information upon termination of this Agreement, the Company agrees to continue abiding by the terms of this Article.
ARTICLE 4.7 – INTELLECTUAL PROPERTY RIGHTS
ARTICLE 4.7.1 – COMPANY RESPONSIBILITIES. The Company warrants that any hardware and/or software products purchased for the Client in accordance with Article 2.3 of this Agreement shall be licensed and shall not infringe the intellectual property rights of any third party.
ARTICLE 4.7.2 – CLIENT RESPONSIBILITIES. The Client warrants that any hardware and/or software products used as part of the Client’s IT environment prior to the execution and term of this Agreement are licensed and do not infringe the intellectual property rights of any third party.
ARTICLE 4.8 – DEFAULT AND LIABILITY
The Company’s liability pursuant hereto shall be limited to the amount paid to it hereunder. In no event shall the Company be liable for consequential damages. Notwithstanding the foregoing, nothing herein shall preclude the Client from bringing suit to recover from the Company all damages incurred by the Client as a result of claims made against it by third parties arising out of the gross negligence or willful misconduct of the Company, or any breach of the Company’s obligations hereunder.
ARTICLE 4.9 – INDEMNIFICATION
ARTICLE 4.9.1 – COMPANY INDEMNIFICATION. The Client agrees to indemnify and hold harmless the Company against and from any liability, expenses (including attorney fees and collection fees), and claims for damages or relief, of any nature whatsoever, which may be asserted against the Company as a result of or arising out of (a) any acts, errors or omissions of (or directed by) the Client, or its employees or agents and (b) any breach of this Agreement by the Client. The Client’s duty to defend, indemnify and hold harmless the Company shall extend beyond the termination of this Agreement.
ARTICLE 4.9.2 – CLIENT INDEMNIFICATION. The Company agrees to indemnify and hold harmless the Client against and from any liability, expenses (including attorney fees), and claims for damages or relief, of any nature whatsoever, which may be asserted against the Client as a result of or arising out of (a) any acts, errors or omissions of (or directed by) the Company, or its employees or agents and (b) any breach of this Agreement by the Company. The Company’s duty to defend, indemnify and hold harmless the Client shall extend beyond the termination of this Agreement.
ARTICLE 4.10 – GENERAL MATTERS
ARTICLE 4.10.1 – FUTURE LITIGATION AND OTHER PROCEEDINGS. In the event that the Client (or any of its officers or directors) or the Company (or any of its officers or directors) at any time subsequent to the Effective Date initiates or becomes subject to any litigation or other proceedings before any governmental authority or arbitration panel regarding any issue or person which has a relationship to the substance of this Agreement, then either party shall comply, at the other party’s expense, with any reasonable requests by the other party for assistance in connection with such litigation or other proceedings (including by way of provision of information and making available of employees as witnesses).
ARTICLE 4.10.2 – INFORMATION TO BE PROVIDED. Subject to applicable law and privileges, each party hereto covenants and agrees to provide the other party with all information regarding itself and transactions under this Agreement that the other party reasonably believes are required to comply with all applicable federal, state, county and local laws, ordinances, regulations and codes, including, but not limited to, securities laws and regulations.
ARTICLE 4.10.3 – FORCE MAJEURE. (a) Neither party shall be liable in damages or have any right to terminate this Agreement for any delay in performance under this Agreement, other than for delay in the payment of fees as described in Article 2 (Cost of Services), to the extent such failures or delays are caused by events beyond its control, including, without limitation to, Acts of God, Government restrictions, wars, and insurrections, provided that, as a condition to the claim of non-liability, the party experiencing the difficulty shall give the other party prompt written notice, with full details following the occurrence of the cause relied upon. (b) The Client shall not have any right to terminate this Agreement for any delay in performance by the Company under this Agreement to the extent such failures or delays are caused by the Client.
ARTICLE 4.10.4 – RELATIONSHIP BETWEEN PARTIES. This Agreement establishes a contractual relationship between the Company and the Client. Nothing in this Agreement shall constitute or be deemed to constitute a partnership or joint venture between the parties hereto, nor constitute or be deemed to constitute any party, agent, or employee of the other party for any purpose whatsoever, and neither party shall have authority or power to bind the other or to contract in the name of, or create a liability against, the other in any way or for any purpose. Neither party is entitled to any employee benefits provided by the other party.
ARTICLE 4.10.5 – EXTERNAL LEGAL ADVICE. The Client acknowledges and agrees that the Company does not provide legal services, but instead provides Services as described in this Agreement. On all matters that may involve legal issues, regardless of whether the Company is supplying the Client with advice or materials, the Client acknowledges and agrees that it will seek the advice of its own legal counsel in all matters relating to this Agreement.
ARTICLE 4.11 – MISCELLANEOUS
(a) This Agreement constitutes the entire agreement between the Company and the Client and supersedes all prior agreements, understandings and negotiations, both written and oral, between the parties with respect to the subject matter hereof. (b) This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland without regard to any conflicts of law provision thereof. (c) If any provision of this Agreement is unenforceable, it shall have the maximum effect permitted by law and the enforceability of other provisions shall be unaffected. (d) The failure of a party to enforce the provisions of this Agreement shall not be construed as a waiver of any provision nor shall such failure limit the right of such party thereafter to enforce each and every provision of this Agreement, which right shall survive the termination of this Agreement. (e) Neither party shall transfer or assign this Agreement without the written consent of the other party. (f) The Company may hire or engage one or more subcontractors to perform all or any of its obligations under this Agreement, provided that the Company will in all cases remain primarily responsible for all obligations undertaken by it in this Agreement with respect to the scope, quality, and nature of the Services provided to the Client.