Terms of Service
1.1. "Deliverables" means any tangible property, and any designs or other information inscribed on a tangible medium or stored in an electronic or other medium, that Company creates, develops or provides, or is to create, develop or provide, under any Schedule.
1.2. "Intellectual Property Rights" means all intellectual property rights, including patent rights, copyrights, moral rights, trademark rights, trade name rights, service mark rights, trade dress rights, trade secret rights, proprietary rights, privacy rights, and publicity rights, whether or not those rights have been filed, registered or applied for under any statute or are protected or protectable under applicable law.
1.3. "Purchase Price" means the amount payable by Client to Company under a Schedule.
1.4. "Services" has the meaning assigned to that term in each Schedule.
2. Payment.2.1. Payment. Except as expressly provided otherwise in a Schedule, Client will pay Company the amount invoiced within 30 days after Client's receipt of each invoice submitted by Company to Client. Unless otherwise provided in a Schedule, all sums payable under that Schedule are payable in United State Dollars.
2.2. Taxes. Company will include in each invoice all federal, state and local sales and use taxes, ad valorem taxes, value added taxes, tariffs and duties that Company is legally required to collect from Client. Company will remit to the appropriate governmental authorities any such taxes, tariffs or duties it receives from Client.
2.3. Expenses. Except as otherwise provided in any Schedule, Client shall reimburse Company for all of its "out-of-pocket" expenses incurred in providing the Services and/or Deliverables (excluding day to day travel) provided such non-emergency expenses are pre-approved in writing by Client. Emergency expenses shall not require written preapproval by Client.
3. Intellectual Property Ownership Rights.3.1. Client and Company Property. Except as expressly provided otherwise in a Schedule, Company and/or its licensors will retain ownership of and to any of Company's Intellectual Property Rights in existence before the Effective Date or independent of this Agreement (collectively, the "Company Property"), and nothing in this Agreement shall confer on Client any title to or, except as necessary for the provision of the Services hereunder, right to us such intellectual property; and Company hereby grants to the Client a nonexclusive, royalty free, perpetual, irrevocable, sublicensable, world-wide license to the extent necessary to use the Deliverables for Client's business purposes with respect to each of the following: any Company Property and/or Developments (defined below) that are incorporated into any of the Deliverables. Except as expressly provided otherwise in a Schedule, Company will own all Deliverables and Services and all Intellectual Property Rights in and to each of the following that are included or embodied in or created in connection with the Deliverables or Services (the "Developments"): (a) all inventions, ideas, developments, designs, devices, machines, manufactures, compositions of matter, patterns, specifications, prototypes, concepts, processes, methods, algorithms, formulae, techniques, know how, or other discoveries, whether or not patentable; and (b) all works of authorship fixed in a tangible medium of expression, including without limitation, designs, patterns, plans, texts, graphics, photographs, drawings, and all other architectural, literary, pictorial, graphic, sculptural, audio visual, musical, collective and other works described in Section 101 of the United States Copyright Act of 1976, as amended; and (c) any word, name, slogan, symbol, jingle, character or sound to be used to identify products or services; and (d) any list, compilation, database or other commercially valuable assembly of information; and (e) all adaptations, modifications, improvements, enhancements, revisions, and derivative works of any of the preceding, whether or not registered; in each case, whether or not made, conceived or reduced to practice alone or jointly with others. Client hereby assigns to Company exclusively, without any compensation, all present and future right, title and interest in and to the Developments, and the Developments and their related benefits will immediately and automatically be the sole and absolute property of Company. Upon Company's request and at Company's cost, Client will execute and deliver to Company all documents necessary to perfect Company's right, title and interest in and to each Development, both domestically and abroad. Client hereby irrevocably designates and appoints Company and its duly authorized agents as Client's attorney-in-fact, to act for an in its behalf to execute and file those documents if Company is unable, after reasonable effort, to secure Client's assistance for any reason.
3.2. Client Intellectual Property. All Intellectual Property Rights owned by Client prior to or independent of this Agreement shall remain the sole and exclusive property of Client, and nothing in this Agreement shall confer on Company any title to or, except as necessary for the provision of the Services hereunder, right to us such intellectual property.
4. Covenants.4.1. Nonsolicitation. During the term of this Agreement and for a period of two years after its termination, Client will not, directly or indirectly, solicit, divert or hire (or attempt to solicit, divert or hire) to or for Client or any other Client or business organization, any Resources (as defined below), whether or not that employee or independent contractor is or was a full-time, part-time or temporary employee or independent contractor, whether or not that employment or relationship is or was pursuant to a written agreement, and whether or not that employment or relationship is or was for a determined period or at will. Notwithstanding the foregoing, Client shall not be prohibited from making any general solicitation not targeted at such Resources directly and any hire or termination resulting from such general solicitation. The Parties agree that in the event Client hires any Resource of Company in breach of this Section 4.1, the resulting actual damages to Company would be costly, and extremely difficult and inconvenient for the Parties to determine. Client also acknowledges that Company has expended a large amount of effort, resources and training in connection with developing its employees' and independent contractors' skills and that replacing them is difficult and expensive. Therefore, the Parties agree that in addition to any other rights and remedies of Company including any available equitable remedy, Client shall pay to Company as liquidated damages, and not as a penalty, the amount of 50% of the Resource's annualized bill rate, for each employee or independent contractor placed by Company at Client's location. The Parties agree that the amounts stated herein as liquidated damages are fair and reasonable under the circumstances existing as of the date of this Agreement.
4.2. FERPA AND HIPAA. If a determination of necessity is made and agreed upon by Client and Company that Company's performance under this Agreement requires compliance with the Family Educational Rights and Privacy Act (FERPA) and/or the Health Insurance Portability and Accountability Act (HIPAA), Company agrees to enter into any and all additional terms necessary to address FERPA and/or HIPAA compliance.
5. Change Control.
5.1. Change Orders Initiated by Client. Client may at any time, without invalidating any Schedule or the rest of this Agreement, direct Company to prepare a draft change order that describes any scope-related changes to a Schedule that Client deems desirable, including changes to the description of the Deliverables or Services, any functional or technical requirements or acceptance criteria, or any other scope-related additions, deletions or revisions. Upon receipt of those directions, provided they don't materially change the nature of the Deliverables or the Services or exceed Company's capacity to perform, Company will promptly prepare and submit to Client a draft change order reflecting Client's requested changes and proposing reasonable adjustments, if any, to the Deliverables or Services, the work schedule and delivery or milestone completion dates for the Services and any Deliverables, and/or the Purchase Price, as applicable.
5.2. Change Orders Initiated by Company. If, during the course of performing its obligations under a Schedule, Company reasonably determines that its costs, or the time necessary to complete the Deliverables or Services, will be significantly greater as a result of (i) any delays on the part of Client, or (ii) the failure of any of the assumptions and conditions described in that Schedule, and if that increase cannot be mitigated through the exercise of reasonable efforts at no significant additional cost to Company, then Company may prepare and submit to Client a draft change order describing Client's delay or the failed assumption or condition, and proposing reasonable adjustments to the Deliverables or Services, the work schedule and delivery or milestone completion dates for the Services and any Deliverables, and/or the Purchase Price, as applicable.
5.3. Final Change Orders; Company's Obligation to Perform. If Client accepts a draft change order for a Schedule prepared by Company under Section 5.1 or Section 5.2 above, Client will sign that change order, and that Schedule will be amended accordingly. If Client rejects any aspect of a draft change order prepared by Company, Client and Company will negotiate in good faith to revise the draft change order; and: (a) If the Parties are unable to reach agreement regarding a change order initiated by Client under Section 5.1, Client may, at its election, (i) withdraw its request for a change order and enforce the current form of that Schedule, or (ii) direct Company to proceed in accordance with the scope changes in the draft change order prepared by Company. If, notwithstanding its rejection of a draft change order prepared by Company, Client directs Company to proceed in accordance with the scope changes requested in a draft change order, Company will perform the work, and in that case any issues related to the work schedule, the delivery or milestone completion dates, and/or the Purchase Price will be referred immediately to arbitration in accordance with Section 5.4 below. (b) If the Parties are unable to reach agreement regarding a change order initiated by Company under Section 5.2, Company will proceed in accordance with this Schedule in its current form, and in that case, any issues related to the work schedule, the delivery or milestone completion dates, and/or the Purchase Price will be referred immediately to arbitration in accordance with Section 5.4. below.
5.4. Arbitration.
(a) Any dispute relating solely to a change order request under this Section 5 that cannot be resolved by the Parties will be resolved by arbitration as provided in this Section. If the dispute relates to any substantive provision in this Agreement other than to this Section 5 (either alone or in connection with any other substantive provision in this Agreement), this Section 5.4 shall also apply.
(b) The Parties will first endeavor to settle any dispute in an amicable manner before resorting to arbitration. Any unresolved change order dispute will be settled by arbitration administered by the JAMS in accordance with its commercial arbitration rules or similar organization selected by the Parties. Arbitration will be conducted in Los Angeles County, California. If the total amount in dispute is less than $500,000, one arbitrator will hear the dispute. If the total amount in dispute is $500,000 or more, three arbitrators will hear the dispute. Each arbitrator must have a minimum of five years' experience as a state or federal judge, ten years as a lawyer or an accountant, or any alternate qualifications that the Parties agree upon.
(c) The Parties have elected to submit their disputes under this Section 5 to arbitration in part to minimize costs and to expedite the resolution of those disputes. Consequently, the arbitrator(s) will allow limited discovery in harmony with those goals.
(d) Each Party will submit to the arbitrator(s), and will exchange with each other Party in advance of the arbitration hearing, its last best draft change order if the dispute involves a change order, or such other information regarding the dispute, if the dispute does not involve a change order. If the dispute involves a change order, the arbitrator(s) will select only one of the two submitted draft change orders and this Schedule will be amended as and to the extent expressly provided by the draft change order selected by the arbitrator(s). If the dispute does not involve a change order the arbitrator shall have the power to grant all legal and equitable remedies, but the arbitrator may not order relief beyond what a court could order. The decision will be final and binding on the Parties. Any court having jurisdiction may enter a judgment on the award rendered by the arbitrator, or correct or vacate such award as provided by applicable law. The arbitrator may award the prevailing party all reasonable attorneys' fees, expert witness fees, and other litigation expenses, expended or incurred in such arbitration or litigation, unless the laws related to the claim that the party prevailed on preclude a court from awarding attorneys' fees and costs to the prevailing party.
(e) Neither Party may disclose the existence, content, results or any other information about the dispute, the arbitration or the award to any person except as necessary to enforce the award or as required by law. Each Party agrees that it will not engage an attorney, arbitrator or arbitration service unless that attorney, arbitrator or arbitration service agrees in writing that it will not disclose the existence, content, results, award (including redacted copies of the award) or any other information about the dispute, the arbitration or the award to any other person without the prior written consent of both Parties.
6. Resources.6.1. Resources. Company will (a) select and supervise the performance of each of its employees and independent contractors who perform work on the Deliverables or render Services (the "Resources") (and may reassign Resources as necessary); (b) will comply with the provisions of California Education Code section 33192 regarding the submission of fingerprints of the Resources to the California Department of Justice and the completion of criminal background investigation for employees and any individual providing the Services or if such Services are performed outside of the State of California, comply with similar state provisions as required; and (c) ensure the manner in which the Services are performed by Company and the specific hours to be worked by Company will be done in the agreed upon Schedule and will be limited to the hours set forth in the Schedule and unless there is an emergency situation, Client will be notified in advance of any potential overages in hours. Company makes no other representations or warranties, whether written, oral, express or implied, with respect to the Services or Deliverables, and hereby disclaims any other express or implied warranties.
6.2. Access to Premises; Holidays; Overtime.
(a) Client will provide the Resources who work at any location owned or controlled by Client a dedicated, environmentally safe, comfortable and secure workspace and access to the premises.
(b) Client will provide the Resources the same holidays and time off recognized by Company. Company recognizes 12 holidays: New Year’s Day, Martin Luther King Day, Cesar Chavez Day, Memorial Day, Juneteenth (June 19th), Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Black Friday (Day After Thanksgiving), Christmas Eve, and Christmas Day.
(c) In addition to Company holidays, each Health Coordinator shall be given a week-long vacation for winter break (from Christmas Eve 12/24 - New Year's Day 1/1) and for summer break (two weeks total) in alignment with the Client’s school calendar.
(d) Client acknowledges and agrees that Resources shall work standard eight-hour work days with a mandatory (and strictly enforced) 30-minute lunch break included in the middle of the day. The exact hours for daily arrival and dismissal will be agreed upon by the Client, Company and the Resource upon hiring.
(e) Overtime hours for Resources will be charged to the Client after eight (8) hours per day or forty (40) hours per week. Double Time hours for Resources will be charged to the Client after twelve (12) hours per day.
(f) If a Resource is required to work on one of Contactor’s recognized holidays, the Resource will be billed to the Client at their Double Time rate.
7. Indemnification.7.1. Definition of Loss and Losses. "Loss" or "Losses" includes, without limitation: (a) all costs and reasonable attorney fees paid or payable by an Indemnitee (defined below) in defense of any claim subject to indemnification under this Section 7, whether prior to, at trial or any other proceeding and in any appeal or other post judgment proceeding; and (b) all direct losses and damages and all incidental, consequential, punitive and exemplary damages paid or payable to any other person, including without limitation, for property damage and for personal injury, sickness and death; (c) all interest, costs, fines, taxes, premiums, assessments, penalties, and expenses; and (d) all other liabilities of any kind or nature.
7.2. Indemnification Obligations. Each Party (the "Indemnitor") will indemnify, defend, and hold harmless the other Party, its affiliates and their respective officers, directors, shareholders, employees and agents (jointly and severally, the "Indemnitees") from and against all Losses asserted directly or indirectly by any other person for any actual or alleged: (a) infringement, misappropriation or unauthorized use of any trademark, patent, copyright, right of privacy, publicity right, trade secret right, name or likeness, or any other Intellectual Property Right of that other person, by the Indemnitor or contained in any Deliverables or Services provided by the Indemnitor; (b) negligent, willful, or unlawful acts or omission by the Indemnitor, in the case of Company in performing the Services or the Deliverables, and in the case of Client, in connection with the Agreement; (c) breach of any representation, warranty or covenant in this Agreement by the Indemnitor; and (d) violation of any applicable law by the Indemnitor; in each case, whether arising from or in connection with a demand, action, regulatory action, lawsuit, proceeding (including without limitation, proceedings under the US Bankruptcy Code), judgment, settlement, appeal or other post judgment proceeding and whether asserted in contract, tort, strict liability or otherwise.
7.3. Exceptions. The indemnification obligations described above will not apply to a Loss to the extent that Loss was caused by: (a) an Indemnitees' negligent acts or omissions; (b) an Indemnitees' breach of its representations, warranties or covenants in this Agreement or elsewhere; (c) an Indemnitees' intentional misconduct; or (d) an Indemnitees' violation of any applicable law. In addition, Company's indemnification obligations will not apply to a Loss to the extent that Loss was caused by: (w) Company's compliance with Client's specifications or detailed instructions, but only if the Loss would not have arisen but for that compliance; (x) Client's modification of the Deliverables without Company's consent (other than those modifications contemplated by the Parties); (y) Client's use of Deliverables or Services in combination with goods or services that were not provided or recommended by Company or contemplated by the Parties. The maximum liability under this Section 7 will be subject to any limitations of liability set forth in this Agreement or in an applicable Schedule.
Procedures.
The duty of Indemnitor to indemnify the Indemnitees under this Section 7 is subject to the Indemnitees' compliance with each of the following conditions: (a) the Indemnitees promptly notify the Indemnitor of the Loss (except that the Indemnitees' failure to promptly notify the Indemnitor of a Loss will not limit, impair or otherwise affect the Indemnitees' rights under this Section 7 unless the Indemnitor is prejudiced by that failure, and then only to the extent of the prejudice); and (b) the Indemnitees give the Indemnitor full and complete authority (including without limitation, settlement authority) and reasonable assistance (including without limitation, reasonable access to information in the Indemnitees' possession) for the defense. However, the Indemnitor's rights under Subsection (b) are contingent on its agreement that it will not settle any claim without the Indemnitees' prior written consent unless that settlement includes a full and final release of all claims against the Indemnitees and does not impose any obligations on the Indemnitees.
8. Confidentiality.8.1. Confidential Information. Company understands that from time to time Client may disclose Confidential Information to Company. For purposes of this Section 8, the term "Confidential Information" means all information of and about Client, its employees, students, and others whose confidential information Client has agreed to protect, whether in oral, written, or other tangible or intangible form, including, without limitation, medical and health information, business plans, financial plans and information, computer programs, security plans, banking information, event planning documents, historical records of incidents, insurance and legal records, and personally identifiable information of Client and Client's employees and others who Client is entrusted to protect, except that the term "Confidential Information" will not include any information that Company can demonstrate: (i) is or subsequently becomes publicly available without Company's breach of any obligation owed to Client; (ii) was known to Company before Client's disclosure of such information to Company as evidenced by Company's written records; (iii) became known to Company from a source other than Client without a breach of this Agreement by Company as evidenced by Company's written records; or (iv) is independently developed by Company's personnel as evidenced by Company's written records.
8.2. Obligations. Company will maintain the Confidential Information in confidence and will not use the Confidential Information for any purpose except to perform its obligations for the benefit of Client under this Agreement. Company agrees to use the same degree of care in protecting the Confidential Information as Company uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. In addition, Company agrees that: (i) it will not reproduce the Confidential Information in any form except as required to accomplish Company's obligations for the benefit of Client under this Agreement; (ii) it will only disclose the Confidential Information to Company's directors, officers, employees, professional advisors and/or independent contractors who have a need to know such Confidential Information in order for Company to perform its duties for the benefit of Client under this Agreement. Company will report any unauthorized access to Confidential Information to Client as soon as Company becomes aware of it. Company will not remove any Confidential Information or records containing Confidential Information from Client, unless authorized to do so, and will return such records to Client upon request.
8.3. Relief. Company acknowledges that due to the unique nature of the Confidential Information, Client would not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. Therefore, in addition to any other remedies that may be available in law, in equity or otherwise, Client will be entitled to obtain injunctive relief to prevent such unauthorized use or disclosure of its Confidential Information.
8.4. Term. Company's obligations under this Section 8 will continue for so long as the Client information qualifies as "Confidential Information."
9. Injunctive Relief. Company acknowledges that its breach of Section 3 ("Intellectual Property Ownership Rights"), and Section 8 ("Confidentiality") of this Agreement will irreparably harm Client, and that such harm will not be susceptible to accurate measurement for the purpose of calculating money damages. Accordingly, Client, in addition to seeking and recovering money damages and other remedies available at law, will have the right to obtain an injunction or other equitable relief to prevent a breach or threatened breach of such Sections, without the necessity of posting a bond or other security.
10. Independent Contractor. Nothing contained in this Agreement will create a joint venture or partnership, establish a relationship of principal and agent, establish a relationship of employer and employee, or any other relationship of a similar nature between the Parties. Neither Party will represent the other Party in any capacity, bind the other Party to any contract, or create or assume any obligation on behalf of the other Party for any purpose whatsoever, except as expressly authorized by this Agreement. Except as expressly required by this Agreement, Company retains sole and absolute discretion as to the manner and means of carrying out its obligations under this Agreement, and Client will have no right or obligation to direct or control Company's working conditions or activities.14.1. Term. The term of this Agreement and/or any Schedule shall be set forth in the applicable Schedule attached to this Agreement.
14.2. For Cause. Either Party may terminate this Agreement or any Schedule, effective immediately, by giving the other Party notice, if the other Party has breached a material provision of this Agreement or any Schedule and that breach (a) is not capable of being cured; or (b) if it is capable of being cured, that breach remains uncured for 30 days after the breaching Party receives notice of that breach. In the event Company terminates this Agreement for cause, all funds paid to Company shall be deemed fully earned and Company shall retain all such funds and have no requirements to provider further Services or Deliverables and Client shall immediately pay any outstanding amounts due and owing Company. In the event Client terminates this Agreement for cause, Company shall refund a prorated amount of the funds paid to it by Client under this Agreement.
15. Survival. The following will survive and continue in full force and effect after this Agreement expires or is earlier terminated: Section 3 ("Intellectual Property Ownership Rights"); Section 4.1 ("Nonsolicitation"); Section 6("Indemnification"); Section 8 ("Confidentiality"); Section 9("Injunctive Relief"); Section 10 ("Independent Contractor"); Section 11 ("Insurance"); Section 12 ("Notices"); this Section 15("Survival"); and Sections 18 ("Governing Law; Jurisdiction and Venue") through Section 24 ("Limitations of Liability"); each other provision of this Agreement (including without limitation, the Schedules and the Attachments) that expressly or by its nature provides for rights, obligations or remedies that extend beyond the expiration or earlier termination of this Agreement; and all claims that arose before the expiration or earlier termination of this Agreement.16. Assignment. Neither Party may assign any right or subcontract or otherwise delegate any duty under this Agreement, whether by transfer, merger, operation of law, or otherwise, without the prior written consent of the Party; provided however such consent shall not be required (i) if Company sells all of its business in any manner to a third party or (ii) if Company assigns or transfers all or part of this Agreement to an affiliate or subsidiary. A change in the control (voting or otherwise) will be deemed an assignment for purposes of this Section.
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