- ENGAGEMENT OF SERVICES
1.1 Work Assignment. Subject to the terms of this Agreement, ASi Networks will render services and provide products as described in the Statement of Work, as well as other services and products in future Statement(s)/Scope(s) of Work as amended in additional Schedules, Exhibits or Amendments to this Agreement.
1.2 Performance of Services. The Services shall be provided by ASi Networks or its employees or contractors. ASi Networks shall maintain sole discretion over the determination of who will be assigned to perform the services under the Agreement, provided that any such employee or contractor executes a copy of this agreement or is otherwise bound by the obligations of Sections 4 and 5 herein.
1.3 Term. This Agreement shall become effective on the date executed by both parties. This Agreement shall automatically renew each year on the anniversary of the effective date and thereafter for an additional period of one year, unless terminated pursuant to Section 6 below.
1.4 Services. ASi Networks will perform services in accordance with the attached proposal, rate schedule, quote, or other future proposals or statements or scopes of work, which will become amendments, schedules or exhibits to this agreement.
2.1 Unless specified otherwise in ASi’s quote and/or statement of work, all fees and reimbursements due ASi Networks shall be paid by client net 30 days from ASi’s invoice date. Any challenge or objection to the invoice must be made, in writing, within 7 business days of the invoice date. Client will be deemed to have accepted the invoice upon the 8th business day from the invoice date, and no further objections to the invoice will be permitted or accepted.
2.2 ASi Networks reserves the right to suspend any and all new or pending work, product shipments or other services contemplated by this agreement for non-payment of invoices at any time in its sole discretion.
2.3 ASi’s fees and reimbursements shall include the following:
2.3.1 Amount of Compensation. Client shall pay to ASi Networks consulting and services fees as prescribed in the statements/scopes of work for all Services reference herein.
2.3.2 Billable Time. If applicable, billable time will be invoiced in thirty-minute increments with a 2-hour onsite minimum. In general, any time spent by ASi Networks on behalf of Client is to be considered billable time.
2.3.3 Reimbursement of Approved Expenses. If applicable, Client shall reimburse ASi Networks for reasonable and appropriate out-of-pocket expenses for travel, lodging, meals and the like incurred by ASi Networks while performing Services for Client. ASi Networks must obtain pre-approval from Client for these expenses. Additionally, Client shall reimburse ASi Networks for non incidental copying, office expenses, and phone calls made on Client’s behalf.
This includes travel time and expenses incurred for each trip.
2.3.4 Updating of Agreement. This Agreement can be updated based on increased workload by ASi Networks and new requirements of the Client. It should be mutually agreed to by the Client and ASi Networks.
- RELATIONSHIP OF PARTIES AND ADDITIONAL OBLIGATIONS
3.1 Nature of Relationship. ASi Networks’ relationship with Client will be that of an independent contractor and nothing in this Agreement shall be construed to create a partnership, joint venture, principal-agent or employer-employee relationship. ASi Networks is not the agent of Client and is not authorized to make any representation, contract or commitment on behalf of Client unless specifically requested or authorized to do so by Client.
3.2 Indemnification. Client shall indemnify and hold ASi Networks and its employees and agents harmless from and against any and all claims, actions, losses, liabilities or damages that ASi Networks or its employees or agents may incur or suffer arising as a result of Client’s acts or omissions.
- CONFIDENTIAL INFORMATION
4.1 Obligation to Hold Information Confidential. Each party acknowledges that all information relating to the business and operations of the other party which it learns or has learned during or prior to the term of this Agreement is the valuable, confidential and proprietary information of the disclosing party.
The receiving party will maintain all confidential information disclosed hereunder by the disclosing party in confidence and will not disclose such information to any third party other than those of its employees or contractors with a need to know such information; provided that each such employee or contractor must have executed a confidentiality agreement or be otherwise bound by the obligations of the receiving party hereunder. The receiving party will safeguard the confidential information with the same degree of care which it uses to protect its own confidential information.
4.2 Exceptions. Section 4.1 will not apply to any information which (i) is already lawfully in the receiving party’s possession (unless received pursuant to a nondisclosure agreement); (ii) is or becomes generally available to the public through no fault of the receiving party; (iii) is disclosed to the receiving party by a third party who may transfer or disclose such information without restriction; (iv) is required to be disclosed by the receiving party as a matter of law; provided that the receiving party will use all reasonable efforts to provide the disclosing party with prior notice of such disclosure and to obtain a protective order therefor; (v) is disclosed by the receiving party with the disclosing party’s approval; and (vi) is independently developed by the receiving party without any use of confidential information. In all cases, the receiving party will use all reasonable efforts to give the disclosing party ten (10) days’ prior written notice of any disclosure of information hereunder.
4.3 Injunctive Relief. ASi Networks and Client acknowledge that any breach of Section 4.1 by a receiving party will irreparably harm the disclosing party. Accordingly, on any such breach, the disclosing party shall be entitled to promptly seek injunctive relief in addition to any other remedies which it may have at law or in equity. The parties will maintain the confidentiality of all confidential and proprietary information learned hereunder for a period of three years from the date of termination of this Agreement.
4.4 Return of Client Property. ASi Networks acknowledges that Client owns all documents delivered to ASi Networks by Client, including, without limitation, manuals, notes, reports, memoranda, files, computer programs, data, spreadsheets and shareholder, customer, employee and contractor lists. On Client’s request at any time or on termination of this Agreement for any reason, ASi Networks agrees to promptly deliver all Client property and all copies thereof in ASi’s possession to Client except as Client may, by prior written permission, allow ASi Networks to retain.
- TERMINATION – NONINTERFERENCE WITH BUSINESS
5.1 Termination. The Client may terminate this Agreement upon 30 days’ notice if ASI materially breaches the terms and conditions of this Agreement and fails to cure the default within the 30-day period. If the Client terminates this Agreement after ASI’s material breach, then the Client will be responsible only for charges for the period before the date of termination.
The Client may terminate this Agreement for any reason other than ASI’s material breach, within the initial 90 days of this agreement start date. The Client shall provide ASI with written notice, and the effective date of the termination will be the end of the initial 90- day period. Should the Client elect to terminate this agreement following the initial 90 days of this agreement start date, the Client shall pay an amount equal to 50% of the remaining monthly service payments due under the terms of this agreement.
The Client shall provide ASI with written notice, and the effective date of the termination will be 30 days from the date written notice is provided to ASI. ASI may terminate this Agreement upon 30-days’ notice for Client’s failure to pay ASI’s invoices for the Services by the Pay By Date.
In addition to any other recoveries ASI is entitled to, ASI shall be entitled to recover from the Client all of the costs ASI incurs (including court costs and reasonable attorney’s fees) to collect any delinquent charges owed by the Client along with all other damages we incur as a result of the Client’s breach of this Agreement, including without limitation past due recurring charges, any damage to our equipment and any amounts we have to pay to third parties because of violations by the Client.
5.2 Limitation of Remedies. IN NO EVENT, REGARDLESS OF THEORY, SHALL ASI BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES OF ANY KIND, OR LOSS OF REVENUE, LOSS OF BUSINESS, LOSS OF DATA OR ANY OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH SERVICES PROVIDED UNDER THIS AGREEMENT. THIS DISCLAIMER OF LIABILITY WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE. ALL SERVICES WILL BE PROVIDED ON A BEST EFFORT BASIS.
5.3 Non-Solicitation. Client acknowledges that it has engaged ASi Networks to render services hereunder for, among other reasons, ASi’s reputation in the business community and its consistent provision of high-quality service, whether directly, by subcontract or otherwise. Accordingly, in consideration of ASi’s provision of services hereunder, Client shall not hire or directly use the independent contractor services of any person subcontracted by ASi Networks to perform services under this Agreement (an “ASi Networks Contractor”) for a period of twenty four calendar months after the termination of this Agreement without ASi’s prior written consent.
- GENERAL PROVISIONS
6.1 Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of California.
6.2 Entire Agreement. This Agreement, together with all exhibits referred to herein, sets forth the entire understanding and agreement of the parties as to the subject matter of this
Agreement. It may not be changed orally but only by a written amendment signed by both parties. The terms of this Agreement will govern all projects and services undertaken by ASi Networks for Client.
6.3 Severability and Waiver. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. Client and ASi Networks agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. The waiver by Client of a breach of any provision of this Agreement by ASi Networks will not operate or be interpreted as a waiver of any other or subsequent breach by ASi Networks.
6.4 Successors and Assigns. Neither this Agreement nor any of the rights or obligations of either party hereunder may be assigned or transferred without the other party’s prior written consent. This Agreement will be binding upon and inure to the benefit of Client’s and ASi’s successors and assigns.
6.5 Notices. Except as otherwise provided in this Agreement, notices required to be given pursuant to this Agreement shall be effective when received and shall be sufficient if given in writing, hand-delivered, sent by email with confirmation of receipt, or sent by courier service and addressed to the address first set forth above. The parties hereto may change the name and address of the person to whom all notices or other documents required under this Agreement must be sent at any time by giving written notice to the other party.
6.6 Arbitration. Any dispute between the parties as to any matter arising out of this Agreement shall be submitted to final and binding judgment of an arbitrator. The arbitration shall be scheduled within sixty (60) days following the demand for arbitration, and the arbitration shall occur no more than ninety (90) days thereafter.
The arbitrator shall be selected in accordance with the rules of the American Arbitration Association. If such service is not available, the dispute shall be submitted to arbitration in accordance with the laws of California. The arbitration award shall be final, and judgment may be entered in any court having jurisdiction thereof.