NOW THEREFORE, in consideration of the foregoing, Customer and the Consultant, intending to be legally bound, agree to the terms set forth below.
1. SCOPE; RETENTION.
1.1 All Services provided by Consultant to Customer will be outlined in one or more Statements of Work (each, an “SOW”) or Service Order Form for Helpdesk Service and Services (each, a “Form” and such SOW or Form, together with this CSA, “Agreement”), each incorporated into this CSA and describing in detail the scope, nature and other relevant characteristics of services (“Scope”), and/or the Deliverables (as defined below) to be delivered (collectively, “Services”). For avoidance of doubt, Customer agrees and acknowledges that the Services do not include the Helpdesk Service, the terms and conditions of which are governed by the Terms and not this Agreement.
1.2 By clicking through this CSA or executing a Form or an SOW to receive Helpdesk Services (and the effective date of such action, “Effective Date”), Customer hereby retains Consultant to provide the Services described in one or more SOW/Form, directly or through a Subcontractor (as defined below), subject to the terms and conditions set forth in this CSA. The Agreement shall become effective with respect to any executed SOW/Form as of the later signature date indicated near the signatures of the Parties in any such SOW or Form. This CSA or any SOW/Form may only be modified by a subsequent SOW/Form (such modification, “Change Order”). The terms and conditions of the Agreement will govern the provision of Services under any SOW/Form, including any exhibits thereto. In the event of a conflict between the terms of this CSA and any terms set forth in an SOW/Form, the terms of this CSA will prevail unless expressly stated otherwise in the applicable SOW/Form. Capitalized terms used but not defined in either this CSA, or an SOW/Form, shall have the meaning ascribed to such terms where defined.
2. PERFORMANCE OF SERVICES.
2.1 Each SOW/Form will detail, at a minimum, the projected Scope of Services, Estimates, Services Fees, Expenses and Personnel (each, as defined below). Consultant and Customer agree to cooperate in good faith to achieve satisfactory completion of the Services in a timely, professional manner.
2.2 In performing the Services, Consultant will provide such resources, and utilize such qualified employees and/or non-employee contractors of Consultant (“Subcontractors” and together with Consultant’s employees, “Personnel”) as it deems necessary to perform the Services or any portion thereof. Customer may object to Consultant’s election of Subcontractors by specifying its objection to Consultant, in which case the Parties will cooperate in good faith to elect another Subcontractor to perform under the applicable SOW/Form. Consultant and its Subcontractors may replace Personnel in their normal course of business, provided that all Personnel shall perform the Services under Consultant direction and Consultant shall be responsible for the performance of Services by all Subcontractors and Personnel.
2.4 Consultant will control the method and manner of performing all work necessary for completion of Services, including but not limited to the supervision and control of any Personnel performing Services. The function and direction of Personnel, and Services they perform will be detailed in the applicable SOW/Form.
2.5 Unless otherwise indicated in an SOW/Form, all Services will be provided on a time and materials basis at Consultant’s then-current fees and charges, and each SOW/Form may contain estimates of the time and materials needed for performing the Services, and associated costs for completion of the Services (“Estimates”). Such Estimates will reflect a reasonable estimate of total cost for the Services and not a fixed price, and Consultant will use commercially reasonable efforts to provide the Services within the Estimates specified in any SOW/Form, up to the number of hours agreed to by the Parties.
2.6 The Parties may elect to define a set of deliverables in an SOW/Form (“Deliverables”), which Consultant will use reasonable commercial efforts to deliver within the Estimates for time and materials, provided that Consultant will not be obligated to provide Services beyond the time set forth in the SOW/Form and paid for by Customer.
2.7 Calculation of any additional Estimate, Services Fees or Personnel in any Change Order will be based on a prorated portion of the then-current applicable SOW/Form.
2.8 No license to any Consultant’s, or any Subcontractor’s software or products is granted under this CSA (except as embodied in Work Product (as defined below)). Any right to Consultant’s or Subcontractor’s other services or products may be acquired under separate terms among the Parties.
3. FEES; PAYMENT TERMS.
3.1 Customer shall pay Consultant (or the Subcontractor designated in the applicable SOW/Form) the Estimates for Services in advance, plus any cost of reasonable expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses incurred by Consultant in connection with providing the Services (collectively, “Expenses,” and together with Services Fees, “Fees”). Additional Fees may be assessed if the Parties agree that additional time & materials are necessary to complete the Services (including under a Change Order), and any balance for unused Fees shall be returned to Customer once delivery of Services has been completed.
3.2 Except where Consultant is at fault in delivering the Services, all Services and Deliverables shall be deemed delivered to Customer at the earlier of (i) delivery of the Services (including any Deliverables) by Contractor or (ii) 6 months after the applicable SOW/Form Effective Date.
3.3 Fees shall be payable upon receipt of an invoice by Customer, except for Fees that Customer disputes in good faith in writing promptly after receiving an invoice. After thirty (30) days from the day Customer receives such invoices, any unpaid Fees shall become overdue and carry 1.5% late fee for each month of delayed payment, with such 1.5% late fees attaching to Fees at the first day of each 30 days’ time increments beginning on the first day that Fees become overdue. Customer will be responsible for any and all taxes levied on transactions under this CSA other than taxes on Consultant’s income.
3.4 Consultant agrees that all Services will be rendered by it or its Subcontractor as an independent contractor, this Agreement does not create an employer-employee, joint venture, partnership or agency relationship between the Consultant and Customer. Neither Consultant nor a Subcontractor shall have right to receive any employee benefits in connection with the Services. Consultant agrees to pay all taxes due for Fees received under this CSA.
4.Term and Termination.
4.1 This CSA will commence on the Effective Date and will remain effective for as long as any SOW/Form is in effect among the Parties, unless terminated earlier in accordance with the terms of this Section 4.
4.2 Either party may terminate this CSA and any SOW/Form (with respect to Services) immediately upon notice to the other party if the other party materially breaches any obligation hereunder (including failure to make any payment for Fees when due), which default is incapable of cure or which, being capable of cure, has not been cured within fifteen (15) business days after receipt of written notice from the non-breaching party specifying the alleged breach and demanding cure.
4.3 Upon termination of this CSA, Consultant will immediately cease performing any Services, and Customer shall pay any Fees not yet paid for all time and materials used prior to the effective date of termination. Sections 3 through 9 of this CSA will survive any termination of the Agreement to the extent necessary to implement their objectives. Neither party shall be liable to the other for damages of any kind solely as a result of terminating this CSA or an SOW/Form in accordance with the terms herein, and termination of this CSA or an SOW/Form by a party shall be without prejudice to other rights or remedies of such party under this Agreement or applicable law.
5. No Warranties, Limitation of Liability.
5.1 Consultant hereby represents and warrants that:
(a) it has all authority, licenses, permits, consents and legal documentation necessary to enter into and perform under this CSA, and will fully comply with all applicable laws, codes, and regulations;
5.2 EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND CONSULTANT EXPRESSLY DISCLAIMS ALL AND ANY REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NEED, ACCURACY, NON-SATISFACTORY QUALITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND TITLE, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CUSTOMER ACKNOWLEDGES THAT CONSULTANT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, AND NO INFORMATION OR ADVICE OBTAINED BY CUSTOMER FROM CONSULTANT SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
5.2 To the fullest extent permitted by applicable law, under no circumstances and in no event will either party be liable under any legal theory for any special, indirect, consequential, exemplary or incidental damages, however caused, arising out of or relating to this Agreement, even if such party has been advised of the possibility of such damages. In no event will Consultant, its Subcontractors or Personnel be liable for any costs or expenses incurred by Customer for the procurement of substitute equipment or services in each case, even if Consultant or its suppliers have been informed of the possibility thereof. The aggregate liability of Consultant, any Subcontractor and/or its Personnel under this CSA or an Agreement will be limited to the amounts paid by Customer to Consultant under the SOW/Form giving rise to such liability. The parties expressly acknowledge and agree that such limitation of liability is essential given the fees charged under the Agreement, which would have been substantially higher if Consultant were to assume any further liability other than as set forth herein, and the parties relied on these limitations in entering into the Agreement.
6. Intellectual Property Indemnification.
Consultant hereby agrees to indemnify, defend and hold Customer harmless from and against any claims or actions, and any reasonable attorney fees relating to defending the foregoing (collectively, “Claims”), brought by a third party against Customer and alleging that the Services or Deliverables (a) include any trade secret that Consultant knowingly misappropriated, (b) use a duly issued U.S. patent that Consultant infringed, or (c) infringe a registered trademark or a valid copyright of such third parties. Consultant’s obligation to indemnify Customer as set forth above is conditioned on Customer giving Consultant prompt written notice of all claims, cooperating in their investigation and defense, and permitting Consultant to control the defense and settlement of such Claims at Consultant’s expense with legal counsel of Consultant’s choice. Notwithstanding the above, Consultant will not be required to defend or indemnify Customer with respect to Claims caused by (i) Customer’s own negligence or willful misconduct; (ii) information supplied by Customer to Consultant (or its Subcontractor) that is included in the Services or Deliverables; (iii) modification of any Deliverable other than by Consultant (or its Subcontractor); (iv) use of any Deliverable other than in accordance with applicable documentation and instructions provided by Consultant (or a Subcontractor); or (v) the use or combination of any Deliverables with materials not supplied by Consultant (or its Subcontractor).
7.1 For the purposes of the Agreement, “Confidential Information” means all technical and business information of a party disclosed to the other party in connection with the Services, in tangible form or orally and designated as “confidential” or “proprietary.” In addition, the Parties agree that any source code, object code, machine-readable copies of licensed software, APIs, specifications, Services, Deliverables and technical manuals supplied to Customer hereunder, unless constituting Work Product (as defined below), are Consultant’s Confidential Information. Each party shall (a) not use for its own benefit, or disclose to or use for the benefit of any other person, any Confidential Information without the other party’s prior written consent, other than in furtherance of the Agreement and the activities described thereunder; (b) use at least the same degree of care and caution to protect the other party’s Confidential Information from disclosure that it employs with respect to its own confidential information, and in any event reasonable care and caution; (c) disclose Confidential Information only to those of its personnel who require access to it in order for such party to be able to perform its obligations under the Agreement, and who are bound to retain the confidentiality thereof in a manner no less restrictive than as required herein; and (d) take appropriate action by adequate contractual arrangements and instruction with Personnel to satisfy the foregoing obligations. This Section shall not apply to any information which (i) is or becomes publicly available through no fault of the receiving party; (ii) is already in the receiving party’s possession without restriction on disclosure when disclosed by the other party; (iii) is placed within the Service by Customer, its affiliates, agents or customers; (iv) is independently developed by the receiving party without any use of the Confidential Information of the disclosing party; or (v) is rightfully obtained by the receiving party from a third party without violating the rights of the disclosing party.
7.2 The Parties acknowledge that any unpermitted disclosure of a party’s Confidential Information is likely to cause the disclosing party irreparable harm for which its remedies at law would be inadequate. Accordingly, each party (as the receiving party) acknowledges and agrees that the party disclosing Confidential Information will be entitled, in addition to any other remedies available to it at law or in equity, to the issuance of injunctive relief, without bond, enjoining any breach or threatened breach of the receiving party’s obligations hereunder with respect to the Confidential Information of the disclosing party, and such further relief as any court of competent jurisdiction may deem just and proper.
7.3 Notwithstanding the foregoing, this Agreement shall not prevent the party receiving Confidential Information from disclosing such Confidential Information to the extent required by a judicial order or other legal obligation, provided that, in such event, the receiving party shall promptly notify the disclosing party of such requirement to allow intervention (and shall cooperate with the disclosing party at the disclosing party’s expense) to contest or minimize the scope of the disclosure (including application for a protective order).
8. Rights to Deliverables; Ownership.
8.1 Subject to the following paragraph 8.2 and Consultant’s receipt of Fees in full hereunder, the Deliverables and any other work product delivered to Customer as part of the Services (collectively, “Work Product”) shall be the property of Customer and shall be considered “Work Made For Hire” under this Agreement. In the event that any Work Product is held not to be a Work Made For Hire, Consultant hereby assigns to Customer all right title and interest therein.
8.2 Consultant and its licensors reserve and retain ownership to all Preexisting Technology, Developed Technology and Generic Components (each as defined below), and Consultant hereby grants to Customer a non-exclusive, fully paid, non-transferable (except to affiliates), limited license to use Preexisting Technology and Developed Technology, solely in connection with Customer’s use of the Zendesk Services. “Preexisting Technology” means all of Consultant’s (or its licensors’) inventions (whether or not patentable), works of authorship, designs, know-how, ideas, concepts, information and tools in existence prior to the commencement of the Services. “Developed Technology” means ideas (whether or not patentable) know-how, technical data, techniques, concepts, information or tools, and all associated intellectual property rights thereto which may be developed by Consultant (or its licensors) under this Agreement in delivering the Services that derive from, improve, enhance or modify Consultant’s Preexisting Technology, excluding any Customer’s Confidential Information. “Generic Components” means all inventions (whether or not patentable), works of authorship, designs, know-how, ideas, information and tools, including without limitation software and programming tools, developed in the course of providing the Services generally to support Consultant’s product and/or service offerings and which (a) can be used in services, applications and deliverables other than those developed under this Agreement, and (b) can be used without Customer’s Confidential Information.
9. Non-Solicitation of Employees.
During the term of this Agreement and for a period of one (1) year thereafter, Customer will not solicit for hire or engagement, or cause others to solicit for hire or engagement, directly or indirectly, as an employee or independent contractor, any employee, Subcontractor or contractor of Consultant who is involved in the performance of Services under this Agreement.
(i) This Agreement thereto constitutes the complete and exclusive statement of the agreement among the Parties, and supersedes all prior negotiations, understandings or agreements (oral or written), between the Parties concerning its subject matter; (ii) The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights; (iii) No change, modification or waiver to this Agreement will be effective unless in writing and signed by both Parties; (iv) In the event that any provision of this Agreement shall be deemed by any court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall be interpreted as closely as possible so as not affect any other provision of this Agreement, and such provision will further be modified by said court to permit its enforcement to the maximum extent permitted by law; (v) this Agreement will be governed by and construed in accordance with the laws of the State of California, USA, without regard to the conflicts of law provisions thereof, and the parties hereby agree to the exclusive jurisdiction and venue, for any action arising under this Agreement, in the federal and state courts located in San Francisco County, California, USA; and (vi) This Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which taken together will constitute one and the same instrument.
Model Statement of Work
|Postal Code||Postal Code|
|Province(if applicable)||Province(if applicable)|
|VAT #(if applicable)||VAT #(if applicable)|
A target Zendesk will be sponsored by the Zendesk Account Manager (if needed)
The estimated timeframe is approximately __________________.
Fees for Services:
This proposal is a time & materials Estimate (see below). Some tasks may require more or less effort than originally estimated. If the project is likely to exceed the previously-accepted time & materials estimate set out in the Fee table below, Contractor (or its Subcontractor, if applicable) will notify Customer of such obtain written authorization from Customer before proceeding.
Services rendered within the scope of this SOW will be billed at the rates detailed below. On the SOW Effective Date (or soon thereafter) Consultant will invoice Customer for Estimates (see below) of time & materials (see below).
The rates quoted in the Estimate are valid for a period of 30 days from the date quoted by Consultant, and after the SOW Effective Date until the completion of Services provision in accordance with this SOW and any Change Order.
The Estimates of Services Fees do not include Expenses related to delivery of the Services. If Expenses are involved in providing the Services, Consultant or Subcontractor, if applicable) will seek approval from Customer prior to incurring Expenses, and will invoice Customer for actual expenses.
|Consultant||$____ / hour|
|Developer||$____ / hour|
|Trainer||$____ / hour|
|Project Manager||$____ / hour|
Customer will provide access credentials to legacy system
Customer will provide a technical point of contact for the duration of this project.
Subcontractor’s Personnel & Contact Person:
- Zendesk, Inc.