Terms & Conditions
The following Terms and Conditions ("Agreement") constitute a legal agreement between you, an individual Independent Consultant (hereinafter "Consultant") or company representative (hereinafter "Client") and Lyghtning, LLC. d/b/a Bench SME (hereinafter "Bench SME"). By registering for a Bench SME account as Consultant or Client, and by clicking to accept the Terms and Conditions when prompted, you are deemed to have executed this Agreement electronically, effective on the date you registered for an account and/or accepted the Terms of Conditions (hereinafter "Effective Date"), pursuant to the U.S. Electronic Signatures in Global and National Commerce Act (the ESign Act) (15 U.S.C. § 7001, et seq.). Your account registration and/or acceptance of the Terms of Conditions constitutes an acknowledgement that you are able to electronically receive, download, and print the Terms and Conditions, and any amendments thereto, that you have the legal authority to enter into this Agreement or to contractually bind a company and that you have the mental capacity to understand the Terms and Conditions set forth below.
PLEASE NOTE THAT TO USE Bench SME'S SERVICES, YOU MUST AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW, INCLUDING BUT NOT LIMITED TO THE AGREEMENT THAT A CONSULTANT IS AN INDEPENDENT CONTRACTOR. PLEASE REVIEW THE MEDIATION AND ARBITRATION PROVISION HEREIN CAREFULLY, AS IT WILL REQUIRE RESOLUTION OF DISPUTES ARISING FROM THIS AGREEMENT OR FROM ANY STATEMENT OF WORK CREATED THROUGH THE Bench SME PLATFORM, VIA MEDIATION OR ARBITRATION BY VIRTUE OF YOUR. ELECTRONIC EXECUTION OF THIS AGREEMENT, YOU ACKNOWLEDGE THAT (1) CONSULTANTS ARE INDEPENDENT CONTRACTORS, (2) YOUR HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT (INCLUDING THE ARBITRATION PROVISION) AND (3) YOU HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION.
1. THE RELATIONSHIP
1.1. No Agency. Bench SME is a technology Platform on which Consultants are matched with Clients for the performance of project-based IT work (hereinafter "Services") as defined in each unique and separately executed Statement of Work (as defined in 2.1). It is agreed that Consultant is not an employee of Bench SME, but is an independent contractor of a Client, and that no employees of Bench SME, Consultant and/or Client will be considered employees of the other for any purpose. This Agreement does not create a joint venture or partnership between Bench SME, Consultant and/or Client. Further, neither Bench SME, Consultant nor Client has the authority to bind the other to any third-party.
2. THE SERVICES
2.1. Statement(s) of Work. Consultant will furnish to Client the Services described in each unique and separately executed Statement of Work. Each Statement of Work will specify: (i) the specific Services to be furnished by Consultant; (ii) a description of features and specifications of the Deliverables (defined in 2.2) resulting from such Services; (iii) a description of any actions, input, or obligations of Client upon which Consultant's performance of the Services is dependent; (iv) a mutually agreed upon performance schedule relating to such Services; (v) the applicable fees and payment terms related thereto; and (vi) any other applicable terms and conditions. In each Statement of Work, Bench SME will designate a "Primary Contact", Client will appoint a "Project Manager" and Consultant will be the principal point of contact for all matters relating to the Services provided under such Statement of Work.
2.2. Deliverables. "Deliverables" means those custom-developed documents, designs, computer programs, computer systems, data, computer documentation, reports, analyses, recommendations, trademarks, service marks, logos and/or other materials authored or prepared by Consultant for Client pursuant to a Statement of Work. If computer code is a "Deliverable" in a Statement of Work, then Consultant grants to Client a nonexclusive, nontransferable, perpetual, internal use, object code license to use such Deliverables for Client's internal business purposes. For avoidance of doubt, Deliverables do not include Bench SME's administrative communications, records, files, and working papers relating to the Services.
2.3. Timetable. Consultant and Client will use commercially reasonable efforts to adhere to the timetable set forth in the applicable Statement of Work. Consultant and/or Client will promptly notify all parties germane to the applicable Statement of Work of any circumstances that may reasonably be anticipated to lead to a material delay.
2.4. Change Orders. Client may request additional services or make modifications to a Statement of Work by delivering a written change order request to the Bench SME Point of Contact. In the event that Bench SME receives a change order request, Bench SME will determine the cost and/or schedule impact, if any, of the requested change, and provide to Client a proposal for a change order ("Change Order"). Each Change Order will be effective when signed by Bench SME, Consultant and Client. Consultant will not be obligated to perform the requested changes unless (a) all necessary parties agree to the terms of the Change Order and (b) all necessary parties execute the applicable Change Order. Notwithstanding the requirement for signature in this paragraph, Change Orders communicated by email correspondence will be deemed effective if (a) the communication clearly references that the message is intended to constitute a Change Order and (b) the communication is confirmed by individuals with the authority to execute a written Change Order.
2.5. Client Responsibilities. Client shall be responsible for cooperating with Consultant in its provision of the Services as set forth in each Statement of Work. Without limiting the generality of the foregoing, in connection with the performance of the Services, Client shall:
2.5.1. Ensure that the Client Project Manager assigned to each specific Statement of Work possesses suitable skills, knowledge and experience to oversee the Services and is granted sufficient authority from Client to make decisions regarding the Services in a timely and effective manner;
2.5.2. Evaluate the adequacy and results of the Services in accordance with the timetable(s) set forth in the applicable Statement(s) of Work and with the acceptance testing process set forth in Section 4 herein; and
2.5.3. Provide access to management personnel, staff, premises, computer systems, and applications as reasonably required by Consultant to perform the Services.
2.5.4. In connection with the performance of any non-attest services, Client agrees to:
22.214.171.124. make all management decisions and perform all management functions;
126.96.36.199. designate an individual who possesses suitable skills, knowledge, and/or experience, preferably within senior management, to oversee such services;
188.8.131.52. evaluate the adequacy and results of the services performed;
184.108.40.206. accept responsibility for the results of the services; and
220.127.116.11. establish and maintain internal controls, including monitoring ongoing activities.
Bench SME will not perform any management functions, make management decisions, or otherwise perform
in a capacity equivalent to that of an employee or officer of Client.
2.6. Training, Support and Maintenance. To the extent and pursuant to the terms (including hourly fees and other financial terms) set forth in an applicable Statement of Work, Client shall provide Consultant with training on the use and operation of the Services and any Deliverables and shall provide any support and maintenance services as specified therein.
3. CLIENT MATERIALS
3.1. License. Client will supply to Consultant certain content and materials as specified in the applicable Statement of Work ("Client Materials") as necessary to enable Consultant to perform the Services. Client will retain ownership of Client Materials. Client grants Consultant a royalty free license to utilize, modify, distribute, and display Client Materials as and to the extent set forth in the applicable Statement of Work and solely for the purpose of enabling Consultant to perform its obligations. Client Materials that contain proprietary information shall be subject to the Confidentiality provisions set forth herein.
3.2. Privacy. To the extent that Client Materials contain Personal Information (as defined below in this paragraph) or that Consultant's access to Client's Network necessitates access to Personal Information, Client represents and warrants to Bench SME and Consultant that (a) it has obtained all consents that may be required under applicable privacy laws and regulations for the collection, use, and disclosure to Bench SME and Consultant of Personal Information; and (b) it will not transmit or make accessible to Bench SME and Consultant in any manner, Personal Information that is not reasonably needed by Bench SME and Consultant to perform the Services or provide the Deliverables. Consultant shall maintain appropriate security measures to protect such Personal Information in accordance with applicable laws and regulations. If Consultant becomes aware of an unauthorized acquisition or use of such Personal Information or a breach of security affecting such Personal Information, Consultant will promptly inform Client of such acquisition or breach, and take all reasonably necessary steps to prevent further disclosure or use at Consultant's cost. Consultant will also reasonably cooperate with Client in support of its breach notification requirements as imposed upon Client by applicable laws and regulations. The term "Personal Information" includes, but is not limited to, social security numbers, driver's license numbers, stateissued identification card numbers, and credit or debit card numbers, with or without any required security code, access code, or personal identification number or password that would permit access to an individual's financial account.
4. ACCEPTANCE TESTING
4.1. Acceptance Tests. If applicable, upon delivery by Consultant of the Deliverables, Client shall be responsible for conducting acceptance tests to verify that such Deliverables conform to the specifications set forth in the applicable Statement of Work. Unless otherwise specified in a Statement of Work, the acceptance testing process shall be subject to the process set forth in this Section 4. Acceptance of the Deliverables by Client shall not unreasonably be withheld and will be deemed to occur on any of the following: (i) Client uses the Deliverables or any part of component thereof for purposes of demonstration or sale and licenses or otherwise ships a product of Client incorporating any Deliverables to any third-party; (ii) 15 days have elapsed from the date of delivery or installation without Client having provided Consultant written notice of a failure of the Deliverables to conform to the specifications set forth in the Statement of Work (such 15day period constituting the "Initial Test Period"); or (iii) Client has notified Consultant in writing that it has accepted the Deliverables.
4.2. Notice of Nonconformities. If Client discovers a failure of any of the Deliverables to conform to the applicable specifications set forth in the Statement of Work ("Nonconformity"), Client will deliver a written notice specifying each Nonconformity in reasonable detail (a "Nonconformity Notice") to Bench SME and Consultant on or before the expiration of the Initial Test Period.
4.3. Corrective Action. Consultant will, at no additional cost to Client correct the Nonconformities stated in the Nonconformity Notice within a reasonable period of time. After Consultant makes such corrections to the nonconforming Deliverables and makes such Deliverables available to Client for acceptance, Client will have 5 business days to retest the Deliverables. If any Nonconformities remain, the process stated above will be repeated.
4.4. Delivery. If applicable, upon the completion and acceptance of a Deliverable that requires the provision to Client of access to computer code, Consultant will deliver a copy of the applicable computer code and any applicable documentation to Client (or to Client's designated hosting provider) as specified in the Statement of Work.
5.1. Fees. All Services performed by Consultant will be performed for the fees and other financial terms as set forth on the applicable Statement of Work. In consideration of Bench SME facilitating and brokering the independent contractor relationship between Client and Consultant, Client and Consultant agree to pay Bench SME a service fee of 10% for each Statement of Work entered into between Consultant and Client via the Bench SME Platform, which is inclusive in the hourly rate as defined in the applicable Statement of Work.
5.2. Expenses. Consultant will be entitled to reimbursement from Client of reasonable expenses incurred in connection with the Statement of Work for travelrelated expenses and for such other items as the Parties may agree upon in writing. Expenses will be submitted by Consultant to Bench SME and then itemized in Bench SME's monthly invoice to the Client. Upon Client's written request, Bench SME will produce documentation of such expenses.
5.3. Payment. For each project, time tracking and hours approval is built into the Bench SME Platform. Consultant records hours directly in a Bench SME time tracking interface on a daily or weekly basis, depending on the specific project. Clients then review the Bench SME project page for submitted hours by the end of the following workweek.
5.3.1. Bench SME will submit a periodic statement and invoice to Client for Consultant's reimbursable expenses and applicable fees. Such invoices will be due and payable within 30 days of the invoice date. If specified in the applicable Statement of Work or services rider, invoicing and payment for Consultant Services will be in accordance with specific schedules set forth therein. Bench SME reserves the right to charge interest of 1% on any invoice that is not paid within 30 days of the invoice date. In the event that Client fails to pay any undisputed fees within 60 days of their due date, Bench SME shall have the right to suspend its Services until such time as Client pays its fees in full. The foregoing does not limit Bench SME from pursuing any other rights available at law or in equity and is in addition to, not in lieu of, Bench SME's termination rights under Section 9 herein and/or under an applicable Statement of Work or services rider. In the event that Client, in good faith, believes that the fees invoiced are incorrect, Client must notify Bench SME in writing (including a detailed description of the basis for Client's contention that the fees are incorrect and any applicable supporting documentation) of such error within 10 days after Client receives the applicable invoice. If Client and Bench SME cannot resolve such dispute within 10 days thereafter, the dispute shall be escalated to the senior management of each respective party, which shall make good faith efforts to resolve such dispute expeditiously. If it is determined that Client owes all or part of any amount subject to dispute, Client shall remit such amount to Bench SME within five days of such determination.
5.3.2. All hours worked by a Consultant are approved by Client prior to invoicing. Once hours are approved, payment to Consultant is processed during the next available payperiod on the 1st and 15th of the month.
5.3.3. In the rare case that a Client considers Consultant's work to be nonconforming, a Dispute Management process is available within the Bench SME Platform. A Bench SME Success Manager will be onhand to facilitate a mutually beneficial outcome.
5.4. Taxes. The fees set forth herein are exclusive of taxes. Client will be responsible for all taxes, levies, and assessments. Consultant (individually) shall be responsible for the payment for all taxes with respect to the Services performed within the Statement of Work including but not limited to FICA and income tax withholdings. Bench SME and Client are not responsible for the payment of Consultant's taxes, including but not limited to FICA and income tax withholdings.
6.1. Ownership of Deliverables. Upon payment in full of all undisputed amounts for the Services in connection with an applicable Statement of Work, all right, title, and interest in and to the Deliverables (including, but not limited to, patents, copyrights and/or trademarks) set forth in the Statement of Work shall immediately transfer to and become the sole and exclusive property of Client, except as set forth below. Further, Client reserves the right to file any and all necessary documents with the appropriate state and federal government agencies to secure protection in the Deliverables, including but not limited to, the prosecution and/or registration of any trademark, copyright, and/or patent applications. Client shall be solely responsible for any and all costs and/or fees (including attorneys' fees) associated with securing intellectual property protection in the Deliverables.
6.2. Bench SME & Consultant Information. Notwithstanding Section 6.1, Bench SME and Consultant reserves all rights in and to all proprietary works of authorship created, developed, or purchased by Bench SME and/or Consultant (or any third-party under contract to Bench SME and/or Consultant) that have not been created specifically for Client and/or were created prior to this Agreement and are not incorporated into the Deliverables, including without limitation, software, methodologies, templates, flowcharts, architecture designs, tools, specifications, drawings, sketches, models, samples, code, records, and documentation, as well as copyrights, trademarks, service marks, ideas, concepts, knowhow, techniques, knowledge, or data, and any derivatives thereof. Information and Bench SME's administrative communications, records, files, and working papers relating to the Services shall remain the sole and exclusive property of Bench SME.
6.3. third-party Software. To the extent that the Deliverables contain third-party Products, Bench SME and/or Consultant will identify such third-party Products in the applicable Statement of Work and will provide Client with any and all license terms and/or license fees applicable to the third-party Products. Client will comply with the applicable third-party license agreement or other terms as set forth herein.
6.4. No Implied Licenses or Transfer of Ownership. All rights not expressly granted herein shall remain the sole and exclusive property of Bench SME and/or Consultant.
7. WARRANTY AND DISCLAIMERS
7.1. Mutual. Consultant or Client represent and warrants that: (a) it is a legal entity duly organized, validly existing, and in good standing; (b) it has all requisite corporate power and authority to execute, deliver, and perform its obligations hereunder; (c) it is duly licensed, authorized, or qualified to do business and is in good standing in every jurisdiction in which a license, authorization, or qualification is required for the ownership or leasing of its assets or the transaction of business of the character transacted by it, except when the failure to be so licensed, authorized, or qualified would not have a material adverse effect on its ability to fulfill its obligations hereunder; (d) it will comply with all laws and regulations applicable to the performance of its obligations hereunder and will obtain all applicable permits and licenses required of it in connection with its obligations hereunder; (e) it will avoid deceptive, misleading, or unethical practices that could adversely affect the performance of another party's obligations under this Agreement or a Statement of Work, or damage the reputation of the other party; (f) it is not a party to any agreement with a third-party, the performance of which is reasonably likely to affect adversely its ability or the ability of the other party to perform fully its respective obligations hereunder; and (g) its performance of its obligations under this Agreement will not violate any other agreement between such party and any third-party.
7.2. Limited Warranty. Consultant warrants that for a period of 60 days following the acceptance date, any Deliverables that are software, excluding unmodified third-party Products ("Software Deliverables"), will perform in accordance with the specifications set forth in the Statement of Work (including any applicable documentation). Should such Software Deliverables, during such warranty period, not perform as warranted herein, Consultant will resolve the problem free of additional charge within a commercially reasonable period of time. Should such Software Deliverables fail to perform after this 60 day warranty period, Consultant shall resolve the problem within a commercially reasonable time and at an additional charge that is mutually agreeable in writing by the Parties. The foregoing are Client's sole and exclusive remedies for a breach of this limited warranty.
7.3. Exclusions from Warranty. Consultant will not be obligated under Section 7.2 to correct, cure, or otherwise remedy any nonconformity if: (a) Client has made any alteration to the Software Deliverables without Consultant's authorization; (b) the Software Deliverables have been misused or damaged other than by Consultant (c) the nonconformity is a result of the combination of the Software Deliverables with third-party hardware, software, or other technology that was not provided by or specified by Consultant; or (d) the nonconformity is caused by data entered or provided by Client, which data is corrupted, erroneous, or in an improper format.
7.4. Warranty of Services. Consultant warrants that the Services shall be performed in a professional and workmanlike manner. In the event that Client notifies Consultant of a breach of the foregoing warranty in connection with a Statement of Work within 60 days after the performance of such Services, as Client's sole and exclusive remedy, and Consultant's sole liability, Consultant shall, at its option, either re-perform the nonconforming Services or refund to Client the fees paid for the nonconforming Services pursuant to the applicable Statement of Work.
7.5. Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE DELIVERABLES AND THE SERVICES ARE PROVIDED "AS IS" AND Bench SME AND CONSULTANT DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (A) IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, AND MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR (B) ANY WARRANTY THAT ANY DELIVERABLE IS FREE FROM ERROR. NO WRITTEN OR ORAL INFORMATION OR ADVICE GIVEN BY Bench SME AND/OR CONSULTANT SHALL CREATE ANY WARRANTY.
7.6. Limitation of Liability. CLIENT AND CONSULTANT UNDERSTAND AND APPRECIATE THE RISKS AND REWARDS ASSOCIATED WITH THIS AGREEMENT AS WELL AS Bench SME'S FEES FOR SERVICES. CLIENT AND CONSULTANT AGREE TO ALLOCATE CERTAIN OF THE RISKS SO THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL AGGREGATE LIABILITY OF CONSULTANT TO CLIENT AND ALL THIRD PARTIES FOR ALL CLAIMS WHATSOEVER RELATED TO THE DELIVERABLES, THE SERVICES PROVIDED HEREUNDER OR THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF THE FEES PAID TO CONSULTANT BY CLIENT DURING THE IMMEDIATELY PRECEDING 12 MONTHS UNDER THE STATEMENT(S) OF WORK THAT GAVE RISE TO SUCH LIABILITY. IN NO EVENT WILL ANY CONSULTANT BE LIABLE FOR ANY LOST PROFITS, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, EVEN IF CONSULTANT HAAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. INTELLECTUAL PROPERTY WARRANTIES, INFRINGEMENT AND INDEMNIFICATION
8.1. Consultant's Intellectual Property Warranty. Consultant warrants that it has no knowledge that any part of any Deliverable or Service infringes or otherwise makes unauthorized use of any United States patent, copyright, trademark, trade secret, or other proprietary right of any third-party.
8.2. Client's Warranty with Respect to Client Materials. Client represents and warrants that it has or will obtain all necessary ownership, licenses, and/or permissions to grant Consultant a license to the Client Materials as set forth herein. Client further represents and warrants that to its knowledge neither the Client Materials nor the licensed use of the Client Materials by Consultant as set forth in this Agreement shall (a) infringe or otherwise violate any third-party U.S. patent, copyright, trademark, trade secret, right of privacy or publicity, or other proprietary rights or (b) violate any federal, state, or local law.
8.3. Infringement. If any Deliverables are or in Consultant's opinion are likely to become the subject of an infringement or misappropriation claimConsultant shall at its own expense, either (a) procure for Client the right to continue using the infringing Deliverable or component thereof (b) replace or modify the Deliverable (or component thereof) so that it becomes noninfringing but still functions in substantial accordance with the applicable specifications or (c) if neither such alternative is commercially reasonable, terminate the Agreement or the applicable Statement of Work and provide to Client, as Client's sole and exclusive remedy, a refund or credit for the fees actually paid by Client to Consultant for the infringing Deliverable or component thereof, prorated from the date of delivery of the Deliverable or component thereof.
8.4. Consultant Indemnification of Bench SME. Consultant shall indemnify, defend and hold Bench SME harmless against all costs, fees, expenses, damages and liabilities (including legal defense costs) associated with any third-party claim, including punitive damages, against Bench SME, arising from or relating to any claim or allegation that a) any Deliverable directly or indirectly infringes a United States patent, trademark, or copyright b) any Deliverable misappropriates a trade secret recognized as such under the Uniform Trade Secret Law, c) any Deliverable violates a right of publicity or privacy right of a third-party, including but not limited to defamation or slander d) negligence occurred in the performance of the Services under a Statement of Work and/or e) a material breach of this Agreement has occurred. Further, Consultant shall pay those costs and damages finally awarded against Bench SME in any lawsuit that are specifically attributable to the foregoing or those costs and damages agreed to in a monetary settlement of such action regarding the same. Consultant's obligations with respect to this paragraph are conditioned on (a) Bench SME notifying Consultant promptly in writing of such action (b) Bench SME giving Consultant sole control of the defense thereof and any related settlement negotiations and (c) Bench SME Client cooperating with Consultant in such defense (including, without limitation, by making available to Consultant all documents and information in possession or control of Bench SME that are relevant to the infringement, misappropriation, negligence or privacy claims, and by making personnel of Bench SME available to testify or consult with Consultant or its attorneys in connection with such defense). Notwithstanding the foregoing, Consultant will have no obligation with respect to any infringement, misappropriation, negligence or privacy claim based upon (a) any use of any Deliverable or component thereof not in accordance with the Agreement (b) any use of the any Deliverable in combination with other products, equipment, software, or data not supplied or expressly specified by Consultant (c) any use of any release or version of any Software Deliverable other than the most current release or version made available to Client (d) any modification of any Deliverable made by any person other than Consultant or (e) any third-party Product. The terms of this paragraph shall apply regardless of the nature of any claim asserted (including those arising from contract law, statutes, regulations, or any form of negligence whether arising out of tort, strict liability, or otherwise) and whether or not Bench SME was advised of the possibility of the damage or loss asserted. Such terms shall also continue to apply after any termination of this Agreement by any party and during any dispute between the parties.
8.5. Client's Indemnification of Bench SME. Client shall indemnify, defend and hold Bench SME harmless against all costs, fees, expenses, damages and liabilities (including legal defense costs) associated with any third-party claim, including punitive damages, against Bench SME, arising from or relating to any claim or allegation that a) any Deliverable directly or indirectly infringes a United States patent, trademark, or copyright b) any Deliverable misappropriates a trade secret recognized as such under the Uniform Trade Secret Law, c) any Deliverable violates a right of publicity or privacy right of a third-party, including but not limited to defamation or slander d) negligence occurred in the performance of the Services under a Statement of Work and/or e) a material breach of this Agreement has occurred. Further, Client shall pay shall pay those costs and damages finally awarded against Bench SME in any lawsuit that are specifically attributable to the foregoing or those costs and damages agreed to in a monetary settlement of such action regarding the same. Client's obligations with respect to this paragraph are conditioned on (a) Bench SME notifying Client promptly in writing of such action (b) Bench SME giving Client sole control of the defense thereof and any related settlement negotiations and (c) Bench SME cooperating with Client in such defense (including, without limitation, by making available to Client all documents and information in Bench SME's possession or control that are relevant to the infringement, misappropriation, negligence or privacy claims, and by making Bench SME's personnel available to testify or consult with Client or its attorneys in connection with such defense). Notwithstanding the foregoing, Client will have no obligation with respect to any infringement, misappropriation, negligence or privacy claim based upon (a) any use of any Deliverable or component thereof not in accordance with the Agreement (b) any use of the any Deliverable in combination with other products, equipment, software, or data not supplied or expressly specified by Consultant (c) any use of any release or version of any Software Deliverable other than the most current release or version made available to Client (d) any modification of any Deliverable made by any person other than Consultant or (e) any third-party Product. The terms of this paragraph shall apply regardless of the nature of any claim asserted (including those arising from contract law, statutes, regulations, or any form of negligence whether arising out of tort, strict liability, or otherwise) and whether or not Bench SME was advised of the possibility of the damage or loss asserted. Such terms shall also continue to apply after any termination of this Agreement by any party and during any dispute between the parties.
9. TERM AND TERMINATION
9.1. Term. This Agreement will commence on the Effective Date and will continue until it is terminated by one of the parties in accordance with this Section 9.
9.2. Material Breach. Any party may terminate this Agreement for a material breach that remains uncured for 30 days after the Breaching Party receives notice of such breach from the NonBreaching Party. For example, the failure of Client to make full payment of any undisputed amounts in a timely manner constitutes a material breach of this Agreement. Upon termination of this Agreement for any reason, in addition to any other amounts that may be due pursuant to this Agreement, Client shall pay Bench SME for all undisputed amounts associated Services rendered and Deliverables delivered prior to the effective date of termination.
9.3. Termination without Cause. Unless otherwise set forth in a Statement of Work or a services rider, any party may terminate this Agreement for any reason upon 60 days prior written notice to the other party provided, however, that if Client terminates pursuant to this Section 9.3, it must pay all undisputed outstanding fees and expenses for Services actually performed and Deliverables or portions thereof delivered (in each case, even if such Services or Deliverables are incomplete) as of the effective date of termination. If any Statement of Work or Services rider hereunder contains payment terms on any basis other than fees and expenses paid on time and materials basis, then this Section 9.3 shall not govern such Statement of Work unless such Statement of Work expressly states otherwise. If a Statement of Work or services rider contains a longer notice period for termination without cause than that set forth herein, then the notice period in the applicable Statement of Work or services rider will govern.
9.4. Survival. The following Sections will survive the termination of this Agreement as applicable: 5.4 (Payment), 6 (Ownership), 7 (Warranty and Disclaimers), 8 (Intellectual Property Warranties, Infringement and Indemnification), 9.4 (Survival), 10 (Confidentiality) 12 (Mediation and Arbitration) and 13 (General Provisions). Section 10 (Confidentiality) shall survive the termination or expiration of this Agreement for one year.
10.1. Use of Confidential Information. The parties, from time to time, may disclose Confidential Information (as defined below) to one another. Accordingly, each party agrees as the recipient (the "Receiving Party") to keep strictly confidential all Confidential Information provided by the other party (the "Disclosing Party"). The Receiving Party further agrees to use the Confidential Information of the Disclosing Party solely for the purpose of exercising its rights and fulfilling its obligations under this Agreement. The Receiving Party may not use for its own benefit or otherwise disclose any of the Confidential Information of the Disclosing Party for any other purpose.
10.2. Definition of Confidential Information. "Confidential Information" means, subject to Section 10.3 herein, information in any form, oral, graphic, written, electronic, machinereadable, or hard copy consisting of (i) any nonpublic information provided by the Disclosing Party, including but not limited to, all of its inventions, processes, concepts, designs, data, source and object code, programs, program interfaces, knowhow, trade secrets, techniques, ideas, discoveries, marketing and business plans, customer information, financial information, pricing, profit margins, and/or similar information (ii) any information which the Disclosing Party identifies as confidential information or the Receiving Party should understand from the context of the disclosure, to be confidential information or (iii) any information that the parties otherwise treat as confidential by their actions. Without limiting the generality of the foregoing, Client acknowledges and agrees that Consultant's knowhow constitutes Confidential Information.
10.3. Exclusions. The term "Confidential Information" will not include information that (a) is publicly available at the time of disclosure by the Disclosing Party (b) becomes publicly available by publication or otherwise after disclosure by the Disclosing Party, other than by breach of this Section 9 by the Receiving Party (c) was lawfully in the Receiving Party's possession, without restriction as to confidentiality or use, at the time of disclosure by the Disclosing Party (d) is provided to the Receiving Party without restriction as to confidentiality or use by a third-party without violation of any obligation to the Disclosing Party, or (e) is independently developed by employees or agents of the Receiving Party who did not access or use the Confidential Information.
10.4. Protection of Confidential Information. The Receiving Party will inform those employees and consultants who have access to the Confidential Information of the Disclosing Party that such information is confidential and proprietary information of a third-party. The Receiving Party agrees to disclose the Confidential Information of the Disclosing Party to its employees and consultants solely for the purpose of exercising the Receiving Party's rights and fulfilling the Receiving Party's obligations hereunder and solely to those employees and consultants who are under confidentiality obligations at least as restrictive as those set forth herein. The Receiving Party will ensure compliance by its employees and consultants having access to the Confidential Information of the Disclosing Party and will be responsible for any breach by any such parties. The Receiving Party will treat the Disclosing Party's Confidential Information with the same degree of care as the Receiving Party treats its own highly confidential and proprietary information, but in no case will such standard of care be less than a reasonable standard of care, taking into account the nature of the Confidential Information at issue. The Receiving Party will notify the Disclosing Party without delay if it has reason to believe that any Confidential Information of the Disclosing Party has been used or disclosed in violation of this Section.
10.5. Return of Confidential Information. Promptly upon the written request of the Disclosing Party or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy all copies of the Disclosing Party's Confidential Information. Consultant will, however, maintain a copy of any Confidential Information necessary to support its work under this Agreement for reference and archive purposes only, in accordance with applicable professional standards. The parties acknowledge that in the case of Confidential Information communicated through email or that has been scanned or otherwise stored electronically by the Receiving Party, the Receiving Party's deletion of (a) email messages from individual mailboxes, or (b) documents from network or individual hard drives will not result in the removal of all copies of such information from the Receiving Party's backup or archival systems.
10.6. Record Retention. Bench SME maintains a record retention policy for documents, including documents in electronic form, in its possession from Clients, Consultants and otherwise. Documents tendered to Bench SME in tangible form may be stored solely in electronic form. A copy of Bench SME's policy is available to Clients and Consultants upon request. Bench SME will exert commercially reasonable efforts to follow its record retention policy and will destroy documents in accordance with its policy, unless otherwise instructed by the Client or as provided herein.
10.7. Legal Proceedings. In the event that the Receiving Party becomes legally compelled to disclose any of the Confidential Information of the Disclosing Party, the Receiving Party will provide the Disclosing Party with prompt notice (to the extent such notice is legally permissible) so that the Disclosing Party may seek a protective order or other appropriate remedy.
10.8. Remedy. Each party acknowledges that the other party will not have an adequate remedy in the event that it breaches the provisions of this Agreement regarding Confidential Information and that such party may suffer irreparable damage and injury in such event. The Breaching Party agrees that the NonBreaching Party, in addition to seeking any other available rights and remedies as may apply, will be entitled to seek an injunction restraining the Breaching Party from committing or continuing such violation without the necessity of posting a bond or other security.
11. INSURANCE. During the Term of this Agreement, Consultant and Client shall maintain the following insurance coverages with per occurrence and aggregate coverage in at least the amounts set forth in this Section 11:
11.1. Worker's Compensation and Employers' Liability. Consultant acknowledges and agrees that Bench SME and Client does not and will not carry Workers' Compensation Insurance on behalf of Consultant because said Consultant is an Independent Contractor and not an employee of Bench SME and/or Client.
11.2. Comprehensive General Liability. Not less than $1 million per occurrence and $2 million in aggregate.
11.3. Professional Liability. Combined single limit of $1 million.
11.4. CyberRisk (Information Security). Combined single limit of $1 million.
Upon Bench SME's written request, Consultant and Client will provide Bench SME with a certificate or
certificates of insurance evidencing that the above-noted insurance requirements have been satisfied.
12. MEDIATION AND ARBITRATION
12.1. The parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement or a Statement of Work created through the Bench SME Platform shall be submitted to the Judicial Arbitration & Mediation Services (hereinafter "JAMS"), or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration pursuant to the clause set forth in 12.5 below.
12.2. Any party may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested.
12.3. The parties will cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in scheduling the mediation proceedings. The parties agree that they will participate in the mediation in good faith and that they will share equally in its costs.
12.4. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or nondiscoverable as a result of its use in the mediation.
12.5. Any party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or at any time following 45 days from the date of filing the written request for mediation, whichever occurs first ("Earliest Initiation Date"). The mediation may continue after the commencement of arbitration if the parties so desire.
12.6. The arbitration panel will consist of 3 arbitrators. The Chair will be an attorney with at least 20 years litigation experience or a retired judge. One of the wing arbitrators must be an expert in consulting services.
12.7. At no time prior to the Earliest Initiation Date shall either side initiate an arbitration or litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by JAMS Rules or by agreement of the parties. However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements of 12.3 above.
12.8. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled until 15 days after the Earliest Initiation Date. The Parties will take such action, if any, required to effectuate such tolling.
13. GENERAL PROVISIONS
13.1. Transfer or Assignment. A Party will not have the right to transfer or assign any Statement of Work or this Agreement or rights granted under it except in connection with (a) the sale of all or substantially all of the party's assets or a line of business sale (b) the sale of a majority of the capital stock of the party or (c) the merger of the party with another entity. In each such instance, the Party may transfer the Agreement to the acquirer or surviving company (in the case of a merger). Any such transfer or assignment will become effective only if and when the transferee or assignee agrees in writing to be bound by the terms of this Agreement.
13.2. Force Majeure. No Party will be responsible for any delay or failure in performance resulting from acts beyond such party's control ("Force Majeure"). Force Majeure will include but not be limited to: acts of God, government or war, riots or strikes, epidemics, fires, floods, or disasters. At its option, Client may terminate any Statement of Work that is delayed more than 60 days by Force Majeure event(s), provided, however, that Client is not excused from paying Consultant via Bench SME for all Services rendered and Deliverables delivered prior to the termination of the Agreement. Force Majeure may not extend any payment obligation by more than 15 days.
13.3. Publicity. All public announcements of the relationship of Bench SME, Consultant and Client under this Agreement shall be subject to the prior written approval of all parties provided, however, that Bench SME may list Client as a Client of Bench SME on its Web site and in marketing materials and other promotional documents.
13.4. Electronic Communications. The parties acknowledge that they may correspond or convey documentation via various forms of electronic transmission (including, but not limited to, email, FTP, and cloud-based sharing and hosting applications) and that neither party has control over the performance, reliability, availability, or security of these electronic transmission methods. Therefore, neither party will be liable for any loss, damage, expense, harm, disclosure, or inconvenience resulting from the loss, delay, interception, corruption, disclosure, or alteration of any electronic transmission due to any reason beyond its reasonable control. Bench SME also offers Consultants and Clients the opportunity to use a secure internet portal for the exchange of confidential information using commercially standard encryption protocols.
13.5. Non-Solicitation. For a period of 6 months following the expiration or termination of a Statement of Work, Client will not actively solicit, employ, or otherwise engage any Consultant who was matched with Client by way of the Bench SME Platform and involved in providing Services under a Statement of Work. If Client desires the services of a Consultant from a prior Statement of Work within 6 months following the expiration or termination of the same, Client shall and must engage Consultant through the Bench SME platform. In the event that Client and/or Consultant breaches this provision, Client agrees to pay Bench SME, within 30 days after a written demand, an amount equal to 15 percent of the annual base salary of any such employee. For avoidance of doubt, the foregoing does not prohibit a party from employing individuals who were not involved in a Statement of Work.
13.6. Notices. Any notice to be given hereunder will be in writing addressed to the party in question or, if made in connection with a Statement of Work, the Point of Contact (for Bench SME), the Project Manager (for Client) and/or Consultant as outlined in the Statement of Work. Except as otherwise expressly provided in this Agreement, notices hereunder will be deemed given and effective if sent by electronic mail (preferred), or if sent by certified or registered United States mail, upon receipt.
13.7. Governing Law.
13.7.1. This Agreement will be governed and construed in accordance with the laws of Delaware, without regard to the conflicts of laws or principles thereof and applicable US federal law. Any and all disputes, claims, or litigation arising from or related in any way to this Agreement or any provisions herein will be resolved exclusively in the state and federal courts located therein. The parties hereby waive any objections against and expressly agree to submit to the personal jurisdiction and venue of such state or federal courts.
13.7.2. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 116).
13.8. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements and understandings, whether written or oral, relating to the subject matter of this Agreement. This Agreement may be amended or modified only by a written instrument executed by all parties.
13.9. Miscellaneous. No delay or omission by any party in exercising any right under this Agreement will operate as a waiver of that or any other right. A waiver or consent given by any party on any one occasion will be effective only in that instance and will not be construed as a bar or waiver of any right on any other occasion. If any provision of this Agreement is found to be invalid by any court or arbitrator having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions.