(All information contained herein is Confidential and Proprietary)
I. General Terms
A. This Agreement governs the technology services (“Services”), temporary personnel, and/or consultants (collectively, “Personnel”) to be provided by Yeoman Technology Group (“Yeoman”) to you (“Client”), on a needs or case-by-case basis. The Services and/or Personnel to be provided shall be more fully described in Statement(s) of Work or Work Orders (“Statement of Work”). Assumptions and conditions for performance of the Services, such as the availability of necessary hardware, software and/or subcontracted services shall be specified in the applicable Statement of Work. Each Statement of Work will be subject to the terms and conditions of this Agreement and must state that it is entered into pursuant to, and incorporates the terms and conditions of, this Agreement. A Statement of Work may contain terms and conditions in addition to those set forth in this Agreement. However, if a Statement of Work contains terms or conditions that conflict with this Agreement, the provisions of this Agreement shall control unless the Statement of Work expressly provides that such conflicting terms or conditions supersede this Agreement. Such additional or different terms or conditions shall be applicable only to the Statement of Work in which they are contained.
B. Client agrees to provide reasonable and safe working conditions, reasonable access to Client’s premises and/or computer systems, and any other resources Yeoman Personnel may reasonably require in order to perform the Services. Client shall also provide the Client Deliverables set forth on the Statement of Work.
C. Yeoman shall screen all Personnel prior to their placement with or assignment to Client. Screening procedures used by Yeoman will be in accordance with Client’s written guidelines if provided to Yeoman prior to placement of Personnel or otherwise according to Yeoman applicable standards. Client reserves the right to reasonably reject any Personnel assigned for the performance of Services. The reasons for Client’s rejection shall be communicated to Yeoman in writing immediately upon rejection. No placement of Personnel or delivery of Services will be made without Client’s and Yeoman’ execution of the applicable Statement of Work.
D. The only means by which Yeoman or Client may modify, supplement or rescind this Agreement or any particular Statement of Work (or any particular provision of any Statement of Work) shall be pursuant to a written Change Order, that has been executed by both Yeoman and Client. Any such Change Order shall reference the Statement of Work to which it applies.
II. Equal Employment Policy
Client agrees to abide by all applicable local, state, and federal laws and regulations relating to the employment and work conditions of Personnel. Yeoman reserves the right to withdraw Personnel in the event Client fails to abide by such applicable laws and regulations.
III. Confidentiality & Proprietary Rights
A. Yeoman and its Personnel shall maintain in confidence and not disclose to any third party, without Client’s prior written consent, any trade secrets or confidential information, knowledge or data relating to Client’s products, processes, or business operations. Client agrees to maintain in confidence and not to disclose to any third party any data, information, technology, materials or trade secrets developed or shared by Yeoman during the term of this Agreement, including the terms of this Agreement. The covenants contained in this paragraph shall survive the termination or expiration of this Agreement.
B. In the event that the Services include any custom application development by Yeoman or its agents, Client shall own the final process, system, or work product created for Client by Yeoman if any such final work product is designated as a “Work for Hire” in the Statement of Work. Unless designated as “Work for Hire” in the applicable Statement of Work. Yeoman shall own any work product developed pursuant to this Agreement. Notwithstanding the designation of a final product as a “Work for Hire”, Yeoman shall own and retain all rights to use any component, tool, design, process, trade secret or other know-how developed or used to create the final “Work for Hire” work product.
IV. Payments
A. All fees, rates and other expenses to be paid by Client to Yeoman for the performance of the Services and/or provision of Personnel shall be set forth on a Statement of Work. Yeoman shall submit invoices to Client for all such fees, rates and expenses in accordance with the schedule set out in the applicable Statement of Work. Each invoice shall reference the applicable Statement of Work. Unless otherwise noted in the Statement of Work, payments due shall be made by Client within twenty-one (21) days from the date of each invoice. If Client fails to pay any invoiced amount when and as due, Yeoman shall have the right (in addition to all other rights Yeoman may hold) to charge interest on such unpaid and overdue amount at a rate of 1.5% per month or the highest rate allowed under applicable law. Unless otherwise set forth in writing on the Statement of Work, Yeoman billing for Personnel placed with Client on a full-time temporary basis shall be as follows: Yeoman’ Personnel shall maintain weekly timecards, and shall record the number of hours worked at the end of each day. At the end of each week a representative of Client shall verify the hours on the Personnel’s timecard and shall confirm the accuracy of time recorded by signing the timecard. Client’s signature shall serve as its final authorization and acceptance of the Services rendered and time recorded by Personnel. Client shall also make a photocopy of the authorized, signed timecard. Personnel shall deliver the original of said timecard to Yeoman. The information from the timecard shall be utilized to prepare the invoice to Client.
B. For purposes of determining whether Personnel are exempt or non-exempt with regard to entitlement to overtime pay, Yeoman may rely on Client’s representations regarding the nature of work and hours of Services provided by Personnel under this Agreement. For whatever reason, if it is determined by any authority that Personnel were entitled to be paid overtime pay and such overtime pay was not made, then Client shall immediately pay to Yeoman the amount of overtime pay owing, plus any interest accrued, costs and fees awarded to Personnel. Thereafter, Yeoman shall immediately disburse such funds awarded to Personnel.
C. In addition to the foregoing, Client shall pay Yeoman’ out-of-pocket expenses, which shall be pre-approved by Client, as set forth in the Statement of Work. Expenses will be presented to Client as a fixed cost per project, where applicable, as detailed in the Statement of Work. No additional expenses shall be invoiced without a mutually-executed Change Order.
V. Rates/Services
A. Client shall pay Yeoman for those Services and Personnel charges in the amounts and on the schedule provided for in the applicable the Statement of Work.
B. The intended nature and scope of work, number of Personnel anticipated, location of work to be performed, and other details of Services and/or Personnel to be provided by Yeoman for Client shall be set forth in the Statement of Work.
C. Unless stated otherwise in a Statement of Work, Client shall be fully responsible for supervising Personnel placed at Client’s site, whether on a part-time, full-time temporary or permanent basis, during the course of the performance of the Services.
D. If Yeoman provides Client with an estimate of the cost or timeframe for any Services to be provided by Yeoman, and the estimate is noted as such in writing, the estimate will be made in good faith based on the information known to Yeoman at the time the estimate is provided but shall not be a binding, final quote. Client agrees to pay all fees and costs incurred for performance of the Services and placement of the Personnel, in accordance with the applicable Statement of Work, even if such sums exceed the estimate.
VI. No-Hire Covenant
A. The parties recognize that Yeoman’s investment in the attraction and placement of Personnel is an essential part of its business practice. Accordingly, Client agrees that it shall not employ or enlist the services of those Personnel placed by Yeoman under this Agreement either through direct or indirect hire, for a period of one (1) year after the conclusion of Personnel’s performance of Services under this Agreement.
B. Recognizing the prohibition set forth in the paragraph immediately above, Yeoman and Client agree that Client may hire Yeoman Personnel if there is a written agreement entered into between the undersigned parties prior to placement of the Personnel, and Client makes payment of a placement fee to Yeoman on the first day of Personnel’s placement. The placement fee shall equal twenty five percent (25%) of Personnel’s “gross annual wages.” For purposes of this section, “gross annual wages” means: (i) in the case of Personnel that is hired on an hourly wage basis – the Personnel’s hourly wage, at the rate last charged to Client by Yeoman, multiplied by forty (40) hours per week over a period of fifty-two (52) weeks; or (ii) if the Personnel is hired on a salary wage basis – the amount equal to the yearly salary to be paid such Personnel by Client.
C. Yeoman agrees that for a period of one (1) year following the completion of the Services under this Agreement, it shall refrain from soliciting any of Client’s employees for hire or actively encouraging any of Client’s employees to terminate his/her employment with Client. Yeoman’s general advertising of available jobs shall not be construed as encouragement or solicitation which violates this provision.
VII. Warranties, Liabilities and Indemnifications
A. Subject to the conditions and limitation on liability stated herein, Yeoman shall perform the Services and all other work under this Agreement in a good and workmanlike manner. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS IS AN AGREEMENT FOR SERVICES ONLY. EXCEPT AS EXPRESSLY SET FORTH IN THE FIRST SENTENCE OF THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGMENT. TO THE EXTENT THAT GOODS OR PRODUCTS ARE ALSO PROVIDED TO CLIENT UNDER THE AGREEMENT, YEOMAN HEREBY DISCLAIMS, AND CLIENT HEREBY WAIVES, ANY AND ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FURTHER, YEOMAN DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS THAT ANY SOFTWARE DEVELOPED THROUGH THE PERFORMANCE OF THE SERVICES WILL BE FREE FROM BUGS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR-FREE OR MAKE ANY OTHER REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF SUCH SOFTWARE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. CLIENT UNDERSTANDS THAT YEOMAN IS NOT RESPONSIBLE FOR AND WILL HAVE NO LIABILITY FOR HARDWARE, SOFTWARE, OR OTHER ITEMS OR ANY SERVICES PROVIDED BY OR MANUFACTURED BY ANY PERSONS OTHER THAN YEOMAN.
B. CLIENT UNDERSTANDS AND AGREES THAT YEOMAN’S LIABILITY FOR ANY DAMAGES SUFFERED BY CLIENT UNDER ANY THEORY OR BASIS SHALL BE LIMITED TO THOSE AMOUNT SPECIFICALLY PROVIDED FOR IN AN APPLICABLE STATEMENT OF WORK COVERING SPECIFIC SERVICES, PERSONNEL AND/OR DELIVERABLES OR $1,000.00 IN THE EVENT THERE IS NO OPEN STATEMENT OF WORK. IN NO EVENT SHALL YEOMAN BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR SIMILAR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY STATEMENTS OF WORK OR CHANGE ORDER, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA OR INTERRUPTION OF DATA PROCESSING OR INFORMATION SYSTEMS, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES. EVEN IF YEOMAN HAS BEEN ADVISED OF, OR OTHERWISE SHOULD HAVE BEEN AWARE OF, THE POSSIBLITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL THEORY OF BASIS FOR SUCH CLAIM.
C. The parties agree to indemnify and defend one another and hold any of the other party’s affiliate companies, officers, directors, agents and employees, free and harmless from and against all claims, costs, liabilities, judgments, damages, settlements and expenses (including reasonable attorneys’ fees and costs) arising out of or related to a third party’s claim based upon the indemnifying party’s: 1. breach of any of its specific representations made in this Agreement; 2. failure to comply in any material respect with any applicable law, statute, ordinance, administrative order, rule or regulation; 3. claimed infringement or violation of any U.S. copyright, patent, trademark or other intellectual property right of any third party; or 4. failure to maintain the confidentiality of the other party’s confidential information as is required by Section III of this Agreement. The indemnifying party shall have the option, at its expense, to employ counsel of its choosing to defend against any claim covered by this Section and to compromise, settle or otherwise dispose of the claim; provided, however, that no compromise or settlement of any claim admitting liability of or imposing any obligations upon the indemnified party may be affected without the prior written consent of the indemnified party. The indemnified party shall have the option to be represented by counsel at its own expense. The indemnified party shall cooperate with the indemnifying party in such actions, making available employees, books and records reasonably necessary for the defense of such claim. If the indemnifying party does not make known to the indemnified party its willingness to defend against such claim within thirty (30) days after it receives notice thereof, then the indemnified party shall be free to investigate, defend, compromise, settle or otherwise dispose of such claim in its best interest and incur other costs in connection therewith, all at the expense of the indemnifying party. In the event that Yeoman performs any custom application development for Client, Yeoman shall have no obligation under this Section with respect to any claim of infringement of a third party’s intellectual property rights if such claim is based on deliverables created by Yeoman pursuant to instructions and/or specifications provided by Client, to the extent that such infringement would not have occurred without such instructions and/or specifications.
VIII. Term and Termination
A. This Agreement shall be effective as of the date of any executed Statement of Work between the parties.
B. Except as otherwise specified in a Statement of Work, the termination of this Agreement by either party shall only be upon thirty (30) days’ prior written notice.
C. In the event of any termination hereunder, Client agrees to pay Yeoman for actual Services performed, expenses, and Personnel time incurred up to the date of termination.
D. Except as otherwise explicitly set forth in this Agreement, Sections III, VI-XVII of this agreement and any other provisions necessary to effectuate those surviving provisions shall survive the termination or expiration of this Agreement or any then applicable Statement of Work.
IX. Relationship of the Parties
Yeoman and Client agree that Yeoman and any person or entity employed or contracted by Yeoman to perform the Services shall be considered an independent contractor engaged in support of Client but not as an employee or agent of Client. Client acknowledges that Yeoman is an independent contractor. Yeoman and Client acknowledge and agree that they are not joint venture partners in any sense and do not have the right or authority to in any way bind one another except as may be explicitly set forth in this Agreement.
X. Amendment or Alteration
No provision of this Agreement shall be amended, supplemented or waived unless such amendment, supplement or waiver is set forth fully in writing and signed by authorized representatives of both parties.
XI. Governing Law
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Yeoman’s primary place of business. In the event Yeoman employs legal counsel to enforce any right or remedy arising out of or relating to this Agreement, and is the prevailing party in such enforcement action, Yeoman shall be entitled to recover its reasonable attorneys’ fees and costs.
XII. Severability and Survivability
If any provision of this Agreement is determined to be illegal, invalid, or unenforceable by a court of competent jurisdiction, such determination shall not affect any other provision of this Agreement, all of which shall remain in full force and effect.
XIII. Notice
Any notice required or permitted under this Agreement shall be in writing except where otherwise expressly stated in this Agreement and shall be effective when delivered in-person or sent by registered or certified United States mail, return receipt requested, proper postage prepaid, and properly addressed to either party’s primary address.
XIV. Assignment
This Agreement may not be assigned, except with the prior written approval by authorized representatives of both parties. Notwithstanding the foregoing, in the event either party transfers its interest to a successor through the sale of the company, the sale of substantially all of its assets or establishment of a subsidiary, then the mutual obligations of this Agreement shall survive and shall be binding upon and inure to the benefit of the parties’ respective successors and permitted assigns.
XV. Waiver
The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion or occasions shall not be considered a waiver thereof nor shall such failure deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
XVI. Arbitration
In the event of a dispute arising under or related to this Agreement where the parties are unable to reach a mutually agreeable resolution, the dispute shall be submitted to binding arbitration under the commercial arbitration rules of the American Arbitration Association then in effect; provided, however, that the parties shall be entitled to avail themselves of injunctive and other equitable powers of a court of appropriate jurisdiction located in Portland, Maine. Arbitrations shall take place in a mutually agreeable location, or if no location is agreed to by the parties, in Portland, Maine. There shall be one arbitrator mutually agreed to by both parties (or in the event the parties are unable to agree on a single arbitrator, each party shall pick an arbitrator and the chosen arbitrators shall chose a third arbitrator). The arbitrator(s) shall have experience in the area of information technology and related matters. After the hearing, the arbitrator(s) shall decide the controversy and render a written decision setting forth the issues adjudicated, the resolution thereof and the reasons for the award. The award of the arbitrator(s) shall be conclusive. Payment of the expenses of arbitration, including the fee of the arbitrator(s) and reasonable attorneys’ fees and costs, shall be assessed by the arbitrator(s) based on the extent to which each party prevails.
XVII. Miscellaneous
1. This Agreement (including all Statements of Work and Change Orders executed by the parties pursuant to this Agreement) contains the entire agreement of the parties and shall supersede any and all existing or previous discussions, negotiations, representations or understandings between Yeoman and Client relating to the subject matter described herein.
2. Yeoman and Client each acknowledge that in considering their entry into this Agreement neither has relied on any warranties, representations, or promises except as specifically set forth herein.
3. This Agreement shall be binding upon and inure to the benefit of the parties’ respective successors and permitted assigns.
4. Neither party shall be responsible or considered in breach of this Agreement for any delay or failure in the performance of any obligation of this Agreement to the extent that such failure or delay is caused by acts of God, fires, explosions, labor disputes, accidents, civil disturbances, material shortages or other similar causes beyond its reasonable control, even if such delay or failure is foreseeable. Provided, however, that the non-performing party provides notice of such cause preventing or delaying performance and resumes its performance as soon as practicable and provided further that the other party may terminate the Agreement upon written notice if such non-performance continues for a period of ninety (90) days.
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