Last Modified July 29, 2025
Development Terms and Conditions
By digitally accepting these Master Service Terms and conditions (the “Agreement”) the accepting Client (the “Client”) hereby agrees to be bound by the below terms as of the date accepted.
RECITALS:
WHEREAS, the CLIENT would like VNS to provide certain services and VNS would like to provide such services in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
I. SERVICES
A. Purpose; Scope of Services. The purpose of this Agreement is to establish uniform terms and conditions that will apply to certain services that VNS may provide to CLIENT as further described in one or more separate work orders (the "Services"). Each specific project for which the CLIENT wishes to engage VNS shall be covered by a separate work order in a form provided to CLIENT by VNS (each, a "Work Order"). Each fully executed Work Order shall be annexed to this Agreement as a sequentially numbered Work Order (e.g., Work Order No. 1, Work Order No. 2, etc.) and shall become part of this Agreement. Each Work Order shall describe in reasonably sufficient detail (1) the Services to be performed, (2) any deliverables, (3) the total fees and costs for the Services and payment schedule therefor, and (4) the estimated period for the provision of the Services. Any special, related or modified services that the Parties agree are outside the scope of the Services to be provided under a particular Work Order shall be either covered under a separate written agreement between the Parties or shall be handled in accordance with the terms of this Agreement.
B. Participation of VNS Affiliates. Any Affiliate (as defined herein) of VNS may participate under this Agreement by entering into a Work Order in the name of such Affiliate. Each Affiliate that enters into a Work Order under this Agreement shall be severally and solely responsible for its own transactions, liabilities, acts, negligence, conduct and/or responsibilities of any nature arising by reason of such Affiliate's participation under this Agreement. Neither VNS nor any participating Affiliate shall be responsible for the transactions, liabilities, acts, negligence, conduct and/or responsibilities of any other participating Affiliate under this Agreement. If an Affiliate enters into a Work Order, any and all references to "VNS", "Party" and/or "Parties" in this Agreement shall apply to such Affiliate, and not to VNS, for purposes of the applicable Work Order, and all rights and benefits granted hereunder to VNS may be exercised and enjoyed by such Affiliate. As used in this Agreement, "Affiliate" shall mean any wholly owned direct or indirect subsidiary of VNS.
C. Performance by VNS. VNS shall perform the Services using employees, agents, independent contractors or approved subcontractors (collectively, "Personnel"). VNS shall provide all necessary facilities, equipment and supplies required for fulfillment of its obligations under this Agreement and each Work Order. VNS shall perform all Services in a professional manner with care, skill and diligence, and shall use best efforts to successfully complete such Services within the time frame set forth in each Work Order. VNS shall promptly notify the CLIENT, by telephone and subsequently in written form, of any events that occur that materially interrupt or affect the performance of any Services or the completion of any Services in accordance with the time frame set forth in the Work Order.
D. Performance of Personnel. If, at any time during the course of any Services, the CLIENT determines that the performance of such Services by any Personnel is unsatisfactory, the CLIENT may request that VNS remove such Personnel and replace such Personnel, at no cost or penalty to VNS for delays or inefficiencies such replacement may cause.
E. Modification of Services. In the event the CLIENT wishes to (1) modify or delete any of the Services described in a particular Work Order; or (2) obtain additional services not covered by a particular Work Order, the CLIENT shall submit to VNS a written document containing the specifications for the changed or additional services (each, a "Change Order Request"). Within ten (10) business days of its receipt of CLIENT’s Change Order Request, VNS shall provide the CLIENT with a cost and revised time estimate for performing the changed or additional Services. The Parties shall then discuss in good faith the effects that such changed or additional Services will have on the cost and time schedule for the applicable project. Once the Parties have agreed upon such changed or additional Services and the applicable cost and time schedule therefor, the Parties shall execute a change order ("Change Order") to the Work Order. Each Change Order must be approved in writing by both Parties prior to implementation and shall be governed by the terms and conditions of this Agreement and the Work Order to which the Change Order relates. VNS shall not implement any changed or additional Services until both Parties have signed the applicable Change Order. If the Parties are unable to agree on the specific terms of any such Change Order, no changes to the applicable Work Order shall be made. Each Change Order executed by the Parties shall be deemed incorporated into the applicable Work Order.
F. Deliverables; Acceptance Criteria. All materials, work products, deliverables or other items to be created, supplied or delivered to the CLIENT by VNS during the course of the Services (“Deliverables”) shall be submitted by VNS to the CLIENT in accordance with the applicable Work Order. In performing the Services, VNS shall ensure that any and all promotional content complies with relevant laws and is approved in accordance with CLIENT’s promotional policies and procedures. Additionally, it is CLIENT’s responsibility to secure any and all rights to use third party intellectual property, photographs and/or images contained in any Deliverable. All Deliverables shall be subject to the review of the CLIENT to verify that the Deliverables satisfy the requirements set forth in the Work Order. Unless otherwise stated in the Work Order, acceptability of such Deliverable shall be based on CLIENT’s reasonable satisfaction with the Deliverable. The CLIENT will notify VNS within ten (10) business days of receiving the Deliverable for review and approval if it did not meet agreed upon parameters.
G. Provided all fees due to VNS are paid under this Agreement or any Work Order, all Deliverables shall be owned by CLIENT and be “works made for hire” under the copyright laws. To the extent any Deliverables don’t qualify as “works made for hire,” VNS agrees to convey all right, title to and interest in them to CLIENT, including without limitation, all patent, copyright and trade secret rights therein. VNS agrees to cooperate reasonably with CLIENT to confirm CLIENT’s rights in the Deliverables, including signing such other documents as may be reasonably requested by CLIENT. CLIENT hereby grants VNS a royalty-free, perpetual, non-transferable, non-exclusive license to use non-confidential Deliverables for VNS’s portfolio, marketing, or promotional purposes. If a Deliverable contains any content used pursuant to license or other permission from a third party, such content will not become CLIENT’s property. VNS will notify CLIENT in advance of the proposed use of any third-party content. VNS shall own all VNS Property in accordance with the following paragraph.
H. “VNS Property” means: (i) any software and/or programming components which were developed or acquired by VNS prior to the effective date of the applicable Proposal, or (ii) VNS’s proprietary technology, including software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights (whether owned by VNS or licensed to it by a third party), plus any derivatives, improvements, enhancements or extensions of any of the foregoing conceived, reduced to practice or developed in the course of performing the Services by either party that are not uniquely applicable to CLIENT or that have general applicability in the art. To the extent any Deliverable contains any VNS Property, VNS hereby grants CLIENT a limited, non-exclusive, royalty-free, perpetual, non-transferable license to use the VNS Property for CLIENT’s internal purposes solely as necessary to modify, improve, distribute, or otherwise use the associated Deliverable. Any content provided by CLIENT remains the exclusive property of CLIENT.
I. VNS’s performance of its duties depends in part upon CLIENT providing timely information, instructions and approvals as outlined in the Proposal and/or Work Order and as otherwise reasonably necessary in the course of any project undertaken for CLIENT. VNS is not responsible for delays caused by CLIENT. Nor can any payment to VNS be withheld or delayed for work performed where final completion is delayed by CLIENT; in such cases, VNS is entitled to pro rata payment for the percentage of the work it has completed. CLIENT understands and agrees that timely approval on Deliverables is critical to meeting project completion timelines established in an applicable Proposal. Unless otherwise agreed in writing, CLIENT approvals on Deliverables or Services are due within five (5) business days after delivery; failure to respond in that time allows VNS to reschedule the Deliverables and/or Services based on VNS’s availability and schedule, at VNS’s sole discretion. VNS will notify CLIENT of updated timelines for Deliverables once established by VNS at its earliest convenience.
J. Provided all fees due to VNS are paid under this Agreement or any Work Order, the CLIENT shall have not more than three months to advise VNS in writing of any issues with the Deliverables. Such issues may include, but not be limited to bugs, error messages, and system functionality issues. VNS will, at no cost to the CLIENT, address such issues provided they do not require creation or design of extra features which were not outlined in the Works Orders signed between the Parties OR are not caused by the misuse of the Deliverables by the CLIENT.
II. COMPANY'S REPRESENTATIONS, WARRANTIES AND COVENANTS
VNS represents, warrants and covenants to the CLIENT as follows:
A. Performance of Services. (1) COMPANY has, and shall use reasonable commercial efforts to maintain, the resources, facilities, and Personnel necessary to perform the Services in accordance with the timeframes set forth in each Work Order; (2) all Personnel shall be qualified and shall have sufficient expertise to perform the Services assigned to them; (3) VNS shall perform the Services conscientiously, in a professional manner, in accordance with all terms and conditions of this Agreement and each Work Order, and shall devote best efforts and abilities thereto; and (4) VNS and all Personnel shall comply with any policies and procedures of VNS that are applicable to the Services.
B. No Conflicting Agreements. VNS is not now a party to any existing agreement that would prevent VNS from entering into and performing its obligations under this Agreement, including any Work Order, in accordance with its terms, and shall not enter into any agreement that is in conflict with, or that would prohibit or impair the performance of, VNS 's obligations under this Agreement, including any Work Order, in accordance with its terms.
C. Licenses, Permits, and Authorizations. At all times during the Term, VNS shall have in effect all licenses, permits and authorizations of all local, state, federal or foreign government agencies to the extent the same are required for VNS’s performance of any Services. VNS shall verify the validity of all such licenses, permits and authorizations before performing the Services and shall not perform any Services for which VNS does not hold all necessary licenses, permits or authorizations. VNS shall provide the CLIENT with copies of any such licenses, permits or authorizations upon request.
D. Valid Agreement. This Agreement is a valid, legal and binding obligation upon VNS, enforceable in accordance with its terms, except as enforceability may be limited by applicable insolvency and other laws affecting creditors' rights generally or by the availability of equitable remedies.
III. COMPENSATION
A. Fees. As consideration for VNS's performance of the Services, the CLIENT shall pay VNS the fees, costs and expenses set forth in the applicable Work Order (the "Fees"), including but not limited to reasonable and necessary travel and other expenses that are incurred by VNS in the performance of the Services, provided that such expenses are included in the Fees set forth in the Work Order. No other compensation shall be paid by the CLIENT to VNS except as otherwise approved in writing by the CLIENT. VNS and the CLIENT agree that the amount of compensation payable to VNS or its Affiliate (as the case may be) for the performance of Services reflects the fair market value of the services being performed by VNS or its Affiliate hereunder. VNS and the CLIENT agree that any payments provided under this Agreement or any Work Order are consistent with arm’s length transactions for services of the kind provided hereunder.
B. Fee Options. VNS and the CLIENT may agree to either a Retainer or a Project / Fixed Fee based compensation for each Work Order. Such option shall be expressly outlined in each Work Order. The following terms shall apply to each option
C. Retainer:
1. Provided the CLIENT retains VNS to provide work under the Work Order on the Retainer basis, such monthly (or otherwise) Retainer shall list the Maximum Number of Hours to be spent by VNS and its Personnel during each retainer period (monthly or otherwise).
2. The monthly (or otherwise) retainer fee shall be due and payable regardless of the CLIENT using all or some of the Maximum Number of Hours.
3. The CLIENT shall have a one-time option to “roll over” up to 20% of unused Maximum Number of Hours during one retainer period into next. This one-time option shall only be available once during each separately signed Statement of Work.
D. Project / Fixed Fee:
1. Provided the CLIENT retains VNS to provide work under the Work Order on a Project / Fixed Fee basis, such fee shall be payable as follows, unless otherwise expressly agreed in writing and specified in the applicable Work Order:
a. 50% of the total Work Order fee upon the execution of this Agreement along with the related Work Order.
b. 30% during midpoint as to be defined in the Work Order.
c. 20% upon completion of the Deliverables in the Work Order.
2. In the event the CLIENT decides to cancel the Work Order for any reason, there shall be a 25% Exit Fee due and payable within 10 days of CLIENT advising VNS of such cancellation. The Exit Fee shall be 25% of the total value of the Work Order at the time of cancellation and payable in addition to any fees already paid by the CLIENT to VNS.
E. Payment of Fees. Prior to payment by the CLIENT of all or any portion of the Fees, VNS must submit an invoice to the CLIENT describing the Services performed and any reimbursable expenses incurred under the relevant Work Order, in sufficient detail, which shall reference the applicable purchase order number provided to the CLIENT by VNS and the Work Order to which it pertains (each, an "Invoice"). VNS shall, following the date payment becomes due by the CLIENT, promptly invoice the CLIENT for the Fees in accordance with the payment schedule set forth in the applicable Work Order. Each Invoice shall be addressed to the address set forth in the Work Order. Additionally, each Invoice shall be accompanied by original receipts or other such supporting data as may be reasonably required by the CLIENT. Approved Invoices shall be paid by the CLIENT within fifteen (15) days after the CLIENT receives a proper Invoice from VNS. Upon payment of the final fees (last retainer fee or a last milestone fee as specified above) under each Work Order, the CLIENT expressly understand and acknowledges that all work done by VNS under such Work Order was performed in a satisfactory manner, as agreed between the Parties, and that no objections can be raised pertaining to the performance or the quality of the Deliverables under such Work Order.
F. Unless otherwise agreed in writing between the Parties, all quotes, estimates, and flat fee proposals provided to the CLIENT under any Work Order are tied to a specific Maximum Number of Hours to be spent by VNS and its Personnel working on each separate Work Order for the CLIENT. Such set Maximum Number of Hours will be listed in each Work Order. Provided it takes more than such set Maximum Number of Hours, the CLIENT will be billed separately at an hourly rate listed in each Work Order.
G. Unless otherwise agreed in writing between the Parties, none of the fees paid by the CLIENT to VNS are refundable or can be used as a credit against any future engagements or Work Orders.
H. In the event any Fees that are due to VNS under this Agreement or any Work Order are not paid by the CLIENT, VNS shall have an absolute right to retain any and all Deliverables, or parts thereof, until such Fees are paid to VNS in full. Further, VNS shall have the right to withhold any Deliverables in the event the CLIENT decides to cancel the Agreement or any Work Order.
I. VNS's Responsibility. All terms and payments of compensation, benefits, and any other condition of engagement for any Personnel shall be solely a matter between VNS and such Personnel. The CLIENT is not and shall not be deemed to be the employer of Personnel, nor shall any Personnel be eligible to participate in any the CLIENT’s benefits programs or be entitled to workers’ compensation payments made by the CLIENT. VNS shall indemnify, defend, and hold harmless the CLIENT from any third party claim that arises out of VNS's failure to comply with this Section III.C and from any claims from Personnel seeking compensation, benefits, or workers’ compensation from VNS.
J. Invoice Disputes. If the CLIENT disputes any Fees or other expenses on an Invoice ("Disputed Charges"), the CLIENT shall notify VNS in writing within a reasonable period of time after receiving the Invoice ("Disputed Charges Notice"). VNS must respond to each Disputed Charges Notice within ten (10) working days following receipt thereof. The Parties shall continue to communicate in writing with respect to the Disputed Charges until one of the following occurs: (1) the CLIENT provides written notice that it will pay the Disputed Charges in full; (2) the Parties agree in writing that VNS shall pay and VNS shall accept a lesser amount in payment of the Disputed Charges than the originally invoiced amount; or (3) VNS provides written notice to the CLIENT that the Disputed Charges have been deleted. VNS shall not have the right to terminate this Agreement for the CLIENT’s failure to pay any Disputed Charges, unless and until the Parties have agreed in writing that all or a portion of such Disputed Charges are actually due and payable, and the CLIENT fails to make such payment within sixty (60) days after the date of such written agreement.
IV. TERM & TERMINATION
A. Term. The term of this Agreement shall commence as of the Effective Date and, if not earlier terminated in accordance with this Agreement, shall remain in full force and effect until the later of: (1) three (3) years after the Effective Date; or (2) upon termination or expiration without renewal of the last Work Order still in effect at the end of three (3) years after the Effective Date (the "Term"). Notwithstanding the foregoing, the Parties may mutually agree in writing to extend the Term of this Agreement.
B. Termination Date. Unless otherwise agreed to by the Parties in writing, the termination date of this Agreement shall be either the last day of the Term as set above or the date on which this Agreement (and all Work Orders) is earlier. The termination date of a Work Order shall be either the last day of the term as set forth in such Work Order.
C. Termination.
1. By the VNS. In addition to any other remedies provided herein or available at law or in equity, VNS may terminate this Agreement and/or any Work Order (i) in the event of a material breach by the CLIENT, which breach is not cured within thirty (30) days following the CLIENT’s receipt of written notice of breach from VNS.
2. By the CLIENT. In addition to any other remedies provided herein or available at law or in equity, the CLIENT may terminate this Agreement and/or any Work Order in the event of material breach of this Agreement or such Work Order by VNS, which breach is not cured within thirty (30) days following VNS's receipt of written notice of breach from the CLIENT;
3. Effect of Termination.
a. Upon termination of this Agreement or any Work Order, VNS shall cease providing Services hereunder or thereunder, as applicable, and shall promptly deliver to the CLIENT, provided all fees are paid under this Agreement, all Work Products developed hereunder or thereunder, whether completed or in progress.
b. In the event of early termination of this Agreement and/or any Work Order, the CLIENT’s liability for payment to VNS under this Agreement and/or such Work Order shall be limited to payment for satisfactorily completed Services actually provided to VNS as of the date of termination, and any other pre-approved, non-cancelable expenses or obligations properly incurred by VNS and allocable to the period of time up to the Termination Date or Work Order Termination Date, as applicable; provided that VNS (i) uses best efforts to minimize such costs and (ii) submits to the CLIENT an invoice for such costs no later than fifteen (15) days after the Termination Date or Work Order Termination Date, as applicable. In the event that the CLIENT has paid for any Services that were not properly and fully rendered as of the Termination Date or the Work Order Termination Date, as applicable, VNS shall refund to the CLIENT such payment for any Services that had not been properly and fully rendered as of the Termination Date or Work Order Termination Date, as applicable. Notwithstanding any provision to the contrary, if the basis for termination of this Agreement or any Work Order is due to the negligence of, fraud of, or material breach by VNS, the CLIENT shall have no obligation to pay COMPANY any unpaid fees or expenses that accrued prior to the Termination Date or Work Order Termination Date, as applicable.
V. CONFIDENTIAL INFORMATION
A. Definition of Confidential Information. VNS acknowledges and agrees that all data, documents, materials, trade-secrets, know-how or information of any type whatsoever, in whatever form or medium, whether disclosed orally or in writing, and whether or not marked as "confidential" and/or "proprietary", including but not limited to, Work Products, CLIENT Materials, research, product plans, products, services, business strategies, customer lists and customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering information, marketing plans, distribution and sales methods and systems, sales and profit figures, finances and other business information of CLIENT or its Affiliates, that is learned, created by, disclosed to or becomes known by VNS or any Personnel pursuant to this Agreement and any Work Order, including any information disclosed by CLIENT or its Affiliates to discuss the possibility of engaging VNS for Services, constitutes the confidential information of VNS (collectively, "Confidential Information").
B. Third Party Information. In providing the Services, VNS may receive confidential information of third parties working with the CLIENT which shall be deemed to be Confidential Information. VNS agrees that it will not (1) comingle CLIENT’s Confidential Information, including any information of a third party working with the CLIENT, with confidential information of other customers, or (2) use any third party confidential information in connection with Services. Additionally, VNS shall not include or incorporate into any Work Product, or improperly use or disclose to the CLIENT, any of its Affiliates or any of their respective directors, officers, employees or agents, any confidential information of any current or former client or any other person or entity with whom VNS has an agreement or duty to keep such information confidential.
C. Exceptions to Confidential Information. Confidential Information shall not include information that VNS can demonstrate by competent written records: (1) is or becomes generally available to the public other than by reason of any breach hereof by VNS or any Personnel; (2) was already known to VNS prior to the date of disclosure without any obligation of confidentiality; (3) is disclosed to VNS by a third party who has the right to disclose such information without any obligation of confidentiality and who did not receive the information directly or indirectly from the CLIENT; or (4) is developed by or on behalf of VNS independently, without access to or reliance on Confidential Information received hereunder.
D. Required Disclosure of Confidential Information. If VNS is required to disclose Confidential Information in order to comply with applicable legal requirements of a public authority, law, rule of court or regulation, VNS shall (1) promptly notify the CLIENT in advance of the disclosure (when practicable given the timing requirements of the disclosure requirement, and when not practicable as soon thereafter as possible); (2) use reasonable efforts to resist disclosing the Confidential Information; (3) cooperate with the CLIENT on request to obtain a protective order or otherwise limit the disclosure; and (4) as soon as reasonably possible, provide a letter from its counsel confirming that the Confidential Information is, in fact, required to be disclosed. In all disclosures made pursuant to this Section NS shall only disclose the minimum amount of Confidential Information that is necessary to comply with the required disclosure, and the disclosed information shall remain Confidential Information for all other purposes.
E. Obligations of Confidentiality. VNS shall (1) hold all Confidential Information in strict confidence; (2) not disclose such Confidential Information to any third party, except to Personnel who need to know such information in connection with the Services; provided, however, that such Personnel are bound by written obligations of confidentiality at least as restrictive as those set forth herein; (3) use such Confidential Information only to the limited extent necessary to perform the Services and not for any other purpose; (4) upon the Termination Date, or earlier upon CLIENT’s request, destroy or return to CLIENT, at CLIENT’s option, all Confidential Information in its possession or control; and (5) protect Confidential Information from disclosure with at least that degree of care used by VNS in dealing with VNS 's own confidential information, which in no event shall be less than a reasonable degree of care to minimize the risk of an unauthorized disclosure of Confidential Information.
F. Restricted Period. The restrictions upon disclosure and use of Confidential Information shall continue during the Term and shall extend beyond the Term for a period of five (5) years, provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such restrictions on disclosure and/or use shall survive the Termination Date for as long as such Confidential Information remains a trade secret, but in no event shall such restrictions on disclosure and/or use cease prior to the expiration of five (5) years following the Termination Date.
G. Breach of Confidentiality. VNS agrees that the unauthorized use or disclosure of any of its Confidential Information by COMPANY in violation of this Agreement will cause severe and irreparable damage to the CLIENT. In the event of any breach or threatened breach of the this Section, VNS agrees that the CLIENT shall be entitled, in addition to any other right or remedy it may have at law or in equity to seek and obtain injunctive relief, without the posting of any bond or other security.
VI. INTELLECTUAL PROPERTY RIGHTS
A. CLIENT Materials. “CLIENT Materials” means all products, technology, equipment, documentation, substances and other materials of any nature provided by or on behalf of CLIENT hereunder. All right, title and interest, including all Intellectual Property Rights, in and to all CLIENT Materials shall be and remain the exclusive property of the CLIENT. Nothing contained herein is intended, or shall be deemed, to transfer to VNS any ownership or other rights in or to such CLIENT Materials, except the right to use the CLIENT Materials to the limited extent necessary to perform Services in accordance with the terms and conditions of this Agreement and any Work Order. VNS shall not have the right to use the CLIENT Materials for any other purpose whatsoever, either during or after the Term of this Agreement. VNS shall return to CLIENT all CLIENT Materials following completion of the Services, upon expiration or termination of the applicable Work Order, or earlier at CLIENT’s request. All original works of authorship which are generated by VNS within the scope of any Work Order and which are protectable by copyright shall be deemed “works made for hire,” as that term is defined in the United States Copyright Act, 17 U.S.C. § 101.
B. Ownership of Work Products. Provided all fees are paid under this Agreement and under any Work Order, CLIENT or an Affiliate of CLIENT, as applicable, shall be the sole and exclusive owner of all Deliverables, reports, results, designs, renderings, drawings, documentation, discoveries, inventions, original works of authorship, findings, conclusions, data, discoveries, developments, concepts, improvements, trade secrets, techniques, processes, know-how, and all other information or work products, whether or not patentable or registrable under patent, copyright or similar laws, that VNS or any Personnel may solely or jointly conceive, develop or reduce to practice, or cause to be conceived, developed or reduced to practice, in the performance of the Services or that result, to any extent, from use of CLIENT’s Confidential Information, CLIENT Materials, or CLIENT’s premises or property (collectively, the “Work Products”), including without limitation any and all moral rights, patent rights, copyrights, trademarks, know-how, trade secrets and other intellectual property rights, and the rights to apply for the same (collectively, "Intellectual Property Rights"). Work Products shall be treated as Confidential Information. VNS shall promptly make full written disclosure to CLIENT, shall hold in trust for the sole right and benefit of CLIENT, and hereby assigns, transfers and conveys, and shall cause Personnel to assign, transfer and convey, to VNS, or its designee, all of VNS's and Personnel’s worldwide right, title and interest in and to all Work Products, including all Intellectual Property Rights therein.
C. Further Assurances. Upon the request and at the expense of CLIENT, VNS shall execute and deliver, and shall cause Personnel to execute and deliver, any and all instruments and documents and otherwise cooperate and take such other acts as may be necessary or desirable to effectuate the assignment and transfer described above or to permit CLIENT to obtain, maintain, perfect, enforce, defend, renew or otherwise enjoy its rights in Works Products in any and all jurisdictions. If CLIENT is unable for any reason to secure VNS's signature to apply for or to pursue any application for any United States or foreign patent, trademark, copyright or other registration covering Work Products assigned to CLIENT hereunder, then VNS hereby irrevocably designates and appoints CLIENT and its duly authorized officers and agents as VNS's agent and attorney in fact, to act for and in VNS's behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of such United States or foreign patent, trademark, copyright or other registration with the same legal force and effect as if executed by CLIENT. CLIENT shall have valid and enforceable written agreements with all Personnel giving CLIENT all rights and authority necessary to effectuate the provisions of this Article.
D. CLIENT Property. CLIENT acknowledges that VNS may own or otherwise control certain inventions, processes, know-how, trade secrets, improvements, other intellectual property and other assets, which are owned or controlled by VNS as of the Effective Date or which are acquired or developed by VNS after the Effective Date independently of its performance of Services under this Agreement or any Work Order (collectively “CLIENT Property”). CLIENT and VNS agree that any CLIENT Property or improvements, modifications or enhancements specific thereto that are developed by VNS during the Term are the sole and exclusive property of CLIENT. To the extent that any Deliverable under this Agreement or a Work Order, provided by CLIENT or any of its Affiliates or Personnel to VNS or any of its Affiliates hereunder consists of CLIENT Property, the CLIENT hereby grants to VNS and its Affiliates a non-exclusive, perpetual, fully paid-up, royalty-free, irrevocable, worldwide license, with the right to grant sublicenses, to use such CLIENT Property in connection with VNS’s business.
E. No License. Each Party agrees that neither Party transfers to the other Party by operation of this Agreement any patent right, copyright, trademark right or other intellectual property right of such Party, except as expressly provided herein
VII. INSURANCE
A. Coverage. VNS shall, at its own expense, provide and keep in full force and effect during the Term and for a period of two (2) years following each Work Order Termination Date the following types and minimum amounts of insurance:
1. Workers' compensation insurance as required by the laws of the jurisdiction in which the Services are performed, and employer's liability insurance with limits of at least $1,000,000 per occurrence.
1. Commercial general liability insurance which shall include bodily injury, property damage, independent contractor coverage, completed operations or products coverage, blanket contractual, and broad-form property damage with limits of at least $1,000,000 per occurrence. VNS shall be named as an additional insured on such insurance policy.
2. Errors and Omissions insurance with limits of at least $1,000,000 per occurrence; and
B. Evidence of Coverage. Within thirty (30) days after execution of this Agreement, VNS shall provide the CLIENT with copies of all certificates of insurance evidencing the coverage required hereunder, which shall also state that the CLIENT shall be provided with a minimum of thirty (30) calendar days prior written notice of any proposed cancellation or expiration without renewal, and five (5) business days prior written notice of any proposed change in carriers or material terms of coverage.
VIII. INDEMNIFICATION
A. By the CLIENT. The CLIENT shall indemnify, defend and hold VNS and its directors, officers, successors and permitted assigns (collectively, the "VNS Indemnified Parties") harmless from and against any and all third party (other than an Affiliate) liabilities, losses, claims, demands, obligations, judgments, causes of action, assessments, fines, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) (collectively, "Claims"), in each case to the extent such Claims are based on, arise out of, or are caused by: (1) a breach or inaccuracy of any representation or warranty made by CLIENT in this Agreement or any Work Order; or (2) any negligent, fraudulent, willful or reckless action, misconduct, error, inaction or omission of CLIENT or its employees, agents or subcontractors, except to the extent such Claims are based on, arise out of, or are caused by, the negligent act or omission, negligence, fraud or willful misconduct of VNS, its representatives, and/or any Personnel, or any breach of any representation or warranty made by VNS in this Agreement, or CLIENT 's failure to perform duly and punctually any covenant, agreement or undertaking of VNS contained in this Agreement or any Work Order. Notwithstanding the foregoing, CLIENT shall not be liable for any Claims to the extent caused by any of the VNS Indemnified Parties as determined in a final, non-appealable order of a court of competent jurisdiction.
B. By VNS. VNS shall indemnify, defend and hold CLIENT and its Affiliates and its and their respective directors, consultants, officers, successors and permitted assigns (collectively, the "CLIENT Indemnified Parties") harmless from and against any and all Claims, in each case to the extent such Claims are based on, arise out of, or are caused by: (1) a breach or inaccuracy of any representation, warranty or covenant made by VNS in this Agreement or any Work Order; (2) a failure by VNS or any Personnel to perform the Services in accordance with this Agreement or any Work Order; or (3) any negligent, fraudulent, willful or reckless action, misconduct, error, inaction or omission of VNS or any Personnel. Notwithstanding the foregoing, VNS shall not be liable for any Claims to the extent caused by any of the CLIENT Indemnified Parties as determined in a final, non-appealable order of a court of competent jurisdiction.
C. Notification of Claims. The Party seeking indemnification hereunder (the "Indemnified Party") shall notify the Party against whom indemnification is sought (the "Indemnifying Party") in writing of any asserted claim within ten (10) business days of learning of the claim. Any failure to timely provide such notice may invalidate any obligation of indemnification to the extent the Indemnifying Party is substantially prejudiced in its ability to defend such claim or action as a result of the delay in notice. The Indemnified Party must authorize and permit the Indemnifying Party to exercise sole control of the defense and disposition of any claim or action, including all decisions related to litigation, appeal or settlement, provided, however, that the Indemnifying Party shall not settle any claims or action that would be deemed to admit wrongdoing or to incur financial obligations on the part of the Indemnified Party without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, the Indemnified Party shall be entitled to retain separate counsel at its own cost to participate in such matter; however, the Indemnifying Party shall have sole case management authority. Each Party shall cooperate with the other in every reasonable way to facilitate the defense of any claim that is subject to indemnification hereunder.
IX. INDEPENDENT CONTRACTOR
VNS's relationship with CLIENT under this Agreement shall be that of an independent contractor. VNS shall exercise its own discretion over the method and manner of performing the Services and CLIENT will not exercise control over VNS or Personnel except insofar as may be reasonably necessary to ensure performance and compliance with this Agreement and each Work Order. The Personnel, methods, and equipment used by VNS shall at all times be under VNS's exclusive direction and control. Nothing in this Agreement shall be construed to designate VNS, or any of its employees or other Personnel, as employees, agents, joint venturers or partners of CLIENT. VNS shall not have the authority, and shall not hold itself out as having the authority, to enter into contracts on behalf of, or otherwise to bind or obligate, CLIENT in any manner. VNS is wholly responsible for withholding and payment of all federal, state and local income and other payroll taxes with respect to its employees and other Personnel, including contributions from them as required by law.
X. WARRANTIES.
Services shall be performed in a workmanlike and professional manner by employees or subcontractors of VNS, and any software or electronic Deliverables will function substantially in accordance with written specifications for a period of three (3) months after delivery. Any errors discovered within this period will be fixed free-of-charge. Any issues brought on by installation of third-party applications or code are not covered by this warranty and would need to be billed to CLIENT and invoiced by VNS under a separate maintenance contract or Proposal.
Except as otherwise specifically provided in this Article, VNS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICE, DELIVERABLE, SOFTWARE OR OTHER MATERIAL SUPPLIED BY VNS, AND VNS EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Without limiting the foregoing, VNS makes no warranty that the Services or Deliverables will: (i) meet CLIENT’s requirements beyond what are specified in the proposal document; (ii) be uninterrupted or available at any particular time from any particular location; or (iii) be free of security breaches, viruses or other harmful components; (iv) be free of errors if those errors are discovered after 6 months from delivery.
VNS makes no warranty as to the results that may be obtained from use of the Services or Deliverables. CLIENT is responsible for determining the usefulness of the foregoing for its business and for all decisions it may make whether to use, implement or act upon any Deliverables, information, opinions, recommendations or other material furnished by VNS. CLIENT specifically acknowledges that it is not paying for any trademark searches or other clearance services and that it takes full responsibility for the decision whether to use any graphics, logos, designs, art work, text or other materials furnished by VNS.
The CLIENT shall be solely responsible, and in no event shall VNS be responsible or liable in any way, for any losses, liabilities or damages caused by or related to (i) design specifications or instructions provided by CLIENT or CLIENT’s representative; (ii) CLIENT’s failure to fulfill its responsibilities under any Proposal or Statement of Work; (iii) the failure of anyone other than VNS or its subcontractors to comply with written instructions or recommendations from VNS or its subcontractors; (iv) any alteration or improper installation, storage, handling, use or maintenance or repair of any part of any Deliverable by anyone other than VNS or its subcontractors; (v) anything external to any Deliverable at CLIENT’s site, including but not limited to building deficiency, power surge, fluctuation or failure, or air conditioning failure; (vi) movement of any Deliverable installed at CLIENT’s site from the location where it was installed by VNS; (vii) any other cause beyond VNS’s reasonable control. In addition, CLIENT acknowledges that the use of any computer network entails a risk of loss of stored data, that industry standards dictate CLIENT’s systematic use of equipment to provide comprehensive backup of data, and that even the systematic use of backup equipment cannot guarantee against the loss of data; accordingly, CLIENT assumes all risk of loss of its stored data in any way related to or resulting from use of any network or backup system installed for CLIENT hereunder, or the provision of Services hereunder, and hereby releases TVP from any liability for loss of such data.
With respect to any third-party software sold, distributed, licensed or supplied by VNS in connection with the Services, to the extent permitted by the manufacturer or licensor of such software, VNS will pass through to Client all product warranties provided by the manufacturer or licensor. In the case of any software owned by VNS and furnished to CLIENT hereunder, such software shall be licensed to CLIENT pursuant to the terms and conditions set forth in a separate written agreement.
XI. LIMITATION OF LIABILITY.
In no event shall VNS be liable for any indirect, incidental, special or consequential damages, whether in contract, tort or otherwise (including negligence and strict liability), including but not limited to loss of anticipated profits or benefits, even if VNS has been advised of the possibility of such damages. VNS’s aggregate liability for any and all losses, damages or claims arising from or related in any way to any Services or Deliverables shall be limited to the lesser of (i) the charge for the Service or Deliverable which is the basis of Client’s claim, or (ii) the reasonable costs to re-perform the relevant Services or repair or replace the relevant Deliverables. In the case of a claim that any Service or Deliverable furnished by VNS violates the rights of any third party, Client’s sole and exclusive remedy is for VNS to furnish a replacement that does not violate said third-party rights.
XII. MISCELLANEOUS
A. Publicity/Use of Name. VNS shall not disclose the fact of, terms of, or subject matter of this Agreement to any third party without the prior written consent of the CLIENT. Upon the CLIENT’s written permission, VNS shall have the right to use the CLIENT’s name, logo, trademark or tradename for the purpose of the public relations and promotional materials.
B. Notices. Any notices, consents or other communications required or permitted with respect to a Work Order or this Agreement shall meet the obligations set forth above and also shall be sent to VNS's or CLIENT's address, as applicable, as set forth in the Work Order.
C. No Conflict. In the event there is a conflict between the terms and conditions of this Agreement and any Work Order or other document attached hereto or thereto or otherwise exchanged between the Parties, the terms and conditions contained in this Agreement shall prevail. No terms of any purchase order or invoice will add to, modify or supersede the terms of this Agreement.
D. Force Majeure. Neither Party shall be responsible for any failure or delay in performance of this Agreement if the failure or delay is due to an event beyond the reasonable control and without the fault or negligence of the Party seeking to excuse performance, including without limitation, acts of God, acts of terrorism, war, labor disputes and strikes, fire, flood, riot, and unforeseen delays in third-party provided transportation or communications (a "Force Majeure Event"). Any Party seeking to excuse or delay performance due to a Force Majeure Event under this Section X.D will provide detailed written notice to the other Party promptly after the occurrence of such Force Majeure Event, detailing the nature and anticipated duration of the delay. A Party claiming the benefit of a Force Majeure Event shall use reasonable efforts to avoid or overcome the causes affecting performance and diligently fulfill all outstanding obligations within thirty (30) days. In the event that any such Force Majeure Event continues for longer than sixty (60) days, either Party shall have the right to terminate this Agreement upon thirty (30) days notice to the other Party, provided that if the Force Majeure Event ceases within such thirty (30) day notice period, this Agreement shall remain in full force and effect.
K. Entire Agreement, Amendment and Waiver. This Agreement (including all Work Orders) is the sole agreement between the CLIENT and VNS with respect to the Services and it supersedes all prior agreements and understandings between the Parties with respect thereto, whether oral or written but without prejudice to any accrued rights and obligations under such agreements. No amendment, supplement or other modification to any provision of this Agreement shall be binding unless in writing and signed by both CLIENT and VNS. No waiver of any rights under this Agreement shall be effective unless in writing signed by the Party to be charged. A waiver of a breach or violation of any provision of this Agreement will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of this Agreement.
L. Severability. If any provision of this Agreement or application thereof to either Party under any circumstances is adjudicated to be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect any other provision or application of this Agreement which can be given effect without the invalid or unenforceable provision or application and shall not invalidate or render unenforceable such provision or application in any other jurisdiction. The Parties agree that should a court determine that any provision, term or condition set forth herein is invalid or unenforceable, the court may alter or modify any such provision, term or condition in a manner to make it valid and enforceable and to effectuate the purpose of that provision, term or condition to the greatest extent possible under applicable law; provided, that , if any such alteration or modification cannot be achieved without materially altering the intention of the Parties, such provision, term or condition shall be deleted.
M. Headings. The headings in this Agreement are intended solely for convenience or reference and shall be given no effect in the construction or interpretation of this Agreement.
N. Counterparts. This Agreement and any Work Order hereunder may be executed by the Parties in separate counterparts, but shall not be effective until each Party has executed and exchanged at least one counterpart. Each counterpart shall constitute an original of the Agreement and/or Work Order, as applicable, but all the counterparts shall together constitute one and the same instrument. Exchange by fax, or by e-mail attaching an executed copy of this Agreement and/or Work Order, as applicable, in Adobe Portable Document Format ("PDF") or of the entire unexecuted document together with an executed signature page in PDF format, will be considered a valid and binding obligation of the executing Party and such electronic signature shall have the same force and effect as an original signature written by hand by such Party.
O. Assignment; Binding Effect; No Third Party Beneficiaries. Neither Party may assign this Agreement or any Work Order without the prior written consent of the other Party; provided, however, the CLIENT may assign this Agreement, in whole or in part, without the prior written consent of VNS to an Affiliate or as part of an assignment, sale or licensing of any product to which any Services provided pursuant to this Agreement relates. All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective heirs, executors, administrators, legal representatives, successors and permitted assigns of the Parties. Nothing in this Agreement, express or implied, is intended to confer on any person or entity other than the Parties hereto or CLIENT’s Affiliates (where expressly provided herein), successors and permitted assigns, any benefits, rights or remedies.
P. Subcontractors. VNS shall obtain CLIENT’s prior written consent before using any subcontractors to perform Services under a Work Order. If written consent to use subcontractors is given by the CLIENT, VNS shall be responsible for ensuring that each subcontractor executes an agreement with VNS, which agreement shall contain terms and conditions that are consistent with and at least as restrictive as those contained in this Agreement. VNS shall at all times be liable for the performance of any subcontractor(s).
Q. Remedies Cumulative. The rights and remedies provided in this Agreement and all other rights and remedies available to either Party at law or in equity are, to the extent permitted by law, cumulative and not exclusive of any other right or remedy now or hereafter available at law or in equity. Neither asserting a right nor employing a remedy shall preclude the concurrent assertion of any other right or employment of any other remedy.
R. Governing Law; Jurisdiction. This Agreement and its enforcement shall be governed by the laws of New York as to all matters, including but not limited to tort claims, matters of validity, construction, effect and performance, arising out of or in connection with this Agreement, without regard to its conflict of laws provisions. The Parties hereby consent to the exclusive jurisdiction and venue of the New York state and federal courts located in the Southern District of New York to resolve any dispute which cannot be resolved amicably by the Parties.
S. Inspection. The CLIENT and its authorized representatives shall have the right, at CLIENT’s sole cost and expense and upon providing notice to VNS, during COMPANY's normal business hours, to inspect any of VNS's facilities that are used to provide the Services, and to discuss and review in detail the processes and procedures used to provide the Services. VNS shall cooperate with the CLIENT in any such inspection, and shall make available to the CLIENT such Personnel as may be appropriate given the nature of CLIENT’s inspection and review.
T. Non-Solicitation. During the term of this Agreement and for a period of twelve (12) months following its termination or expiration, CLIENT agrees not to, directly or indirectly, solicit for employment or engagement, hire, or otherwise retain the services of any employee, contractor, or subcontractor of VNS who was involved in providing Services under this Agreement, without the prior written consent of VNS. In the event of a breach of this provision, CLIENT agrees to pay VNS an amount equal to 24 months (3,840 hours) of a full time allocation at VNS Standard Rate with VNS as liquidated damages, not as a penalty, in recognition of the cost of recruitment, training, and loss of intellectual capital.
