SERVICE PROVIDER AGREEMENT
The terms of this Service Provider Agreement (“Agreement”) are hereby acknowledged and entered into between 10K ADVISORS, LLC, a Kentucky limited liability company having its registered office at 635 W. Main Street, Suite 300a, Louisville, Kentucky 40202 (“Company”) and the “Service Provider” executing a Statement of Work (“SOW”). The terms of this Agreement are explicitly adopted by the Company and the Service Provider through the execution of the Statement of Work. As indicated in the Statement of Work, this Agreement is an adopted addendum to the Statement of Work Agreement.
WHEREAS, Company is engaged in the “Business” of providing technology consulting, product development and/or the marketing, sales and distribution of software solutions including, but not limited to, the rendering of architecture and technology development for software implementations, methodologies and/or customer based applications, whether independently, as an affiliate and/or licensee of Salesforce® or other third party service providers;
WHEREAS, Company desires to engage Service Provider, from time to time, on a project by project basis, as an independent Service Provider, to provide professional services either directly to Company or to customers of Company on Company’s behalf, or otherwise to solicit or service certain customer accounts as may be assigned to Service Provider by Company (collectively, the “Accounts” or individually, as an “Account”) and/or to otherwise assist Company in the marketing, financial and/or administrative aspects of the Business;
WHEREAS, Service Provider desires the opportunity to render services to Company from time to time, and Company desires the opportunity to engage Service Provider to render such services through the issuance of Statements of Work;
WHEREAS, Company has a substantial investment in the skills, knowledge and techniques of its Business which Service Provider will acquire during the Term (as hereinafter defined) of this Agreement;
WHEREAS, In order to preserve the goodwill of Company and sustain its continued growth and prosperity, Company deems it necessary that the knowledge, skills and contacts of Service Provider be used for the benefit of Company and its affiliates and not be used, in violation of this Agreement, to the advantage of any business enterprise or venture which is or may become a competitor of Company or its affiliates; and
WHEREAS, the parties intend that this Agreement sets forth the exclusive terms and conditions which shall govern the performance of the Work by Service Provider for Company should Company engage Service Provider to provide Work.
NOW THEREFORE, in consideration of the premises, the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do agree as follows:
1. Definitions (all other defined terms herein shall have the meanings as described within the context of this Agreement).
“Confidential Information” means all information which is identified or treated by Company or any of Company’s clients or customers as confidential or which by reason of its character or the circumstances or manner of its disclosure is evidently confidential including, without limitation, all Deliverables, all information designated by Company as confidential, all information or data concerning or related to Company’s products (including the discovery, invention, research, improvement, development, manufacture, or sale thereof), processes, or general business operations (including sales, costs, profits, pricing methods, organization, and employee and customer lists), and any information of the foregoing nature received from Company related to Company’s customers or clients, which, if not otherwise described above, is of such a nature that a reasonable person would believe it to be confidential or proprietary.
“Deliverables” means the tangible and intangible results of the Service in any media or format including, but not limited to, any report, software, code, documents, materials, models, designs, drawings, processes, formulae, inventions, methodologies know-how, Confidential Information or other work performed, made, created, devised, developed or discovered by Service Provider in connection with this Agreement (and whether or not made or discovered during the course of Service Provider’s performance of Service Provider’s duties under this Agreement) either alone or with any other person in connection with or relating to the business of Company or capable of being used or adapted for use therein or in connection therewith.
“Intellectual Property Rights” means any and all existing and future intellectual or industrial property rights in and to any Deliverables (whether registered or unregistered) including all existing and future patents, copyrights, design rights, database rights, trademarks, Internet rights/domain names, know-how and any and all applications for any of the foregoing and any and all rights to apply for any of the foregoing in and to any Deliverables.
“Open Source Software” means any “open source” code (as defined by the Open Source Initiative), “free” code (as defined by the Free Software Foundation), community source code, including any libraries or code licensed under the General Public License, or any other software that is generally made available for free on the Internet in source code form.
“Pre-Existing Intellectual Property” means any proprietary methodologies, tools, models, software, procedures, documentation, know-how, processes, trade secrets, inventions, or works of authorship that have already been conceived or developed by Service Provider before Service Provider renders any Services under this Agreement.
“Statements of Work” mean shall mean any specifications, instructions, drawings, schedules, contracts, scopes of Work and/or descriptions of Work.
“Third Party Materials” means any code, libraries, programs, software, documentation or other intellectual property of any type which is not created solely by Service Provider.
2. Services.
Service Provider shall provide services (“Services”) to Company as described on one or more Statements of Work signed by Service Provider and Company, which reference this Agreement (“SOW” or “Statement of Work”). Service Provider shall perform Services in a prompt manner and provide each Deliverable no later than the delivery dates specified in the applicable SOW. At the direction of Company, Service Provider shall provide Services directly to Company or to customers of Company on Company’s behalf. The parties may execute additional Statements of Work describing Services, which will become part of this Agreement upon execution by Service Provider and Company. Company makes no commitment to Service Provider as to the exclusiveness of this relationship or as to the volume, if any, of business Company will do with Service Provider.
3. No Sub-Service Provider.
Service Provider may not subcontract the Services without the prior express written consent of Company.
4. Changes and Change Orders.
Company shall have the right, in its sole discretion, to modify, reject, cancel or terminate any SOW and any related plans, schedules or work in process with written notice given to Service Provider. Changes in the scope of or conditions of the SOW shall result in equitable adjustments in the contract price and/or any work schedule and shall be memorialized in writing between the parties. If Contractor believes that adjustment of the Contract Price or the Work schedule is justified In the event Company terminates a Statement of Work other than for Service Provider’s material breach pursuant to Section 9 (Term and Termination) prior to completion of Services, Company shall pay Service Provider the fees due under the SOW with respect to Services completed as of the date of termination.
5. Third Party Materials and Open Source.
5.1 Third-Party Materials. Service Provider shall not incorporate any Third Party Materials into a Deliverable, furnish any Third Party Materials into a Deliverable, furnish any Third Party Materials in conjunction with a Deliverable, or develop a Deliverable in a manner that requires Company to use any Third Party Materials in order to use such Deliverable, unless Service Provider (i) has specifically identified such Third Party Materials in the applicable SOW or otherwise obtained Company’s prior written consent and (ii) has obtained a license for Company’s (and Company’s licensees’) benefit which is as extensive as the license set forth in Section 7.5(b) below (“Third Party Materials License”).
5.2 Use Of Open Source. The obligations set forth in Section 5.1 with respect to Third Party Materials apply to any use of Open Source Software in connection with any Deliverable (excluding the obligation to obtain a Third Party Materials License unless otherwise specified in the applicable SOW). If Company approves use by Service Provider of any Open Source Software in connection with a Deliverable, Service Provider shall include documentation with each such Deliverable identifying any and all Open Source Software that is included in such Deliverable and provide Company a copy of the applicable license prior to inclusion.
5.3. Types of Open Source Never Allowed. Notwithstanding the foregoing, Service Provider shall not provide as part of any Deliverable, or otherwise use in connection with the Services, any software which contains any Open Source Software which is licensed under the “General Public License,” “LGPL,” “AGPL,” or any other license which could (i) compromise or interfere in any way with Company’s intellectual property rights or (ii) require Company to publicly release, distribute or license the source code to any Deliverable, to any Company software, or to any of Company’s customers’ or clients’ software, (iii) require that any disclosure, distribution or license of any Deliverable, any Company software, or any of Company’s customers’ or clients’ software be at no charge, or (iv) require that any other licensee of any Deliverable, any Company software, or any of Company’s customers’ or clients’ software be permitted to modify, make derivative works of, reverse-engineer or redistribute such Deliverable or software.
6. Representations and Warranties.
6.1 Service Provider’s Representations and Warranties. Service Provider hereby represents and warrants that:
(a) Due Authority. Service Provider has full right and power to enter into and perform this Agreement without the consent of any third party, and its performance under this Agreement will not conflict with any other obligation Service Provider may have to any other party.
(b) Standard of Performance. Service Provider will perform the Services in a timely, professional and workmanlike manner and with a degree of quality equal to or higher than applicable industry standards for similar services. In addition, all Services and each Deliverable shall conform in all material respects with the description set forth in the SOW.
(c) No Harmful Code. The Services and all Deliverables shall be free of any: (i) viruses, worms, time bombs, Trojan horses or other harmful, malicious or destructive code; (ii) software disabling devices, time-out devices, counter devices and devices intended to collect data regarding usage of the software without the knowledge of Company and (iii) Open Source Software, except as expressly authorized by Company in writing in accordance with Section 5 (Third Party Materials and Open Source Software). Service Provider warrants that it will maintain proper review practices and controls to ensure the following security threats are not introduced as part of any Deliverables: SQL injection, Cross site scripting, Cross site request forgery, XML or LDAP injection, Session fixation, Buffer overflows, Command injection, Directory traversal, HTTP response splitting, Arbitrary redirection, Sensitive cookies permitted to be sent over insecure channels, Insecure third party domain access and cross domain policies, Server execution of user-uploaded files, Unauthorized privilege escalation, Use of HTTPS using other than SSLv3 or TLS, Returning verbose error information to clients, Exposing cryptography errors to client (e.g. incorrect padding), Use of SSL/TLS with null ciphers or ciphers using symmetric keys of less than 128 bits in length, ViewStates not encrypted with session-specific elements incorporated into the encryption key, for Force.com applications, these vulnerability classes also include not enforcing configured access control (Sharing, field level security, CRUD).
(d) Intellectual Property Rights. Each Deliverable is and will be an original work of Service Provider except for any Third Party Materials and Pre-Existing Intellectual Property incorporated therein as approved under Section 5 (Third Party Materials and Open Source Software) or 7.5 (Pre-Existing Intellectual Property), as applicable. Neither the Deliverables nor any element thereof will (i) infringe the intellectual property rights of any third party or (ii) be subject to any restrictions or to any mortgages, liens, pledges, security interests, encumbrances or encroachments.
(e) No Employment, Agency or Partnership. Service Provider warrants and represents to Company that Service Provider is an independent Service Provider. Service Provider shall perform services on behalf of Company in the capacity of independent Service Provider, and not as an employee, worker, partner, agent or joint venture partner of Company. Service Provider shall not have any right or power whatsoever to contract on behalf of Company in any way in relation to third parties and will not hold Service Provider out as having such authority unless specifically authorized to do so by Company. Service Provider is supplying the Services to Company as part of Service Provider’s business undertaking. Company is Service Provider’s client for these purposes.
6.2 Remedy of Defects. Service Provider shall, without charge, correct any non-conformity, defect or malfunction in any Deliverable reported by Company within thirty (30) days of receipt of notice from Company, or if Service Provider is unable to make the Deliverable operate as warranted within such 30-day period, then Company may terminate immediately the applicable SOW, and Service Provider shall refund to Company all fees paid for such defective Services within 10 days of termination. The remedies set forth in this Section 6.2 shall be non-exclusive.
6.3 Warranty Disclaimer. EXCEPT FOR SERVICE PROVIDER’S WARRANTIES SET FORTH IN THIS AGREEMENT AND IN ANY SOW, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Inventions and Other Deliverables.
7.1 Creation of Deliverables. Service Provider may make or create Deliverables during the term of any SOW or this Agreement.
7.2 Disclosure and Ownership of Deliverables. Service Provider must immediately disclose to Company all Deliverables and all Intellectual Property Rights. On a “work for hire basis”, both the Deliverables and the Intellectual Property Rights will belong to and be the absolute property of Company or any other person Company may nominate. Service Provider hereby assigns and agrees to assign all Intellectual Property Rights and any other rights, title and interest in and to the Deliverables to Company.
7.3 Protection, Registration and Vesting of Deliverables. Service Provider shall immediately on request by Company (during Service Provider’s engagement or after its termination) and at the expense of Company:
(a) apply or join with Company in applying for any Intellectual Property Rights or other protection or registration (“Protection”) in the U.S. and in any other part of the world for, or in relation to, any Deliverables;
(b) execute all instruments and do all things necessary for vesting all Intellectual Property Rights or Protection when obtained and all right, title and interest to and in the same absolutely and as sole beneficial owner in Company or other person as Company may nominate; and
(c) sign and execute any documents and do any acts reasonably required by Company in connection with any proceedings in respect of any applications and any publication or application for revocation of any Intellectual Property Rights or Protection.
7.4 Power of Attorney. Service Provider hereby irrevocably appoints Company to be Service Provider’s attorney and in Service Provider’s name and on Service Provider’s behalf to execute any such act and to sign all deeds and documents and generally to use Service Provider’s name for the purpose of giving to Company the full benefit of this section. Service Provider agrees that, with respect to any third parties, a certificate signed by any duly authorized officer of Company that any act or deed or document falls within the authority hereby conferred shall be conclusive evidence that this is the case.
7.5 Pre-Existing Intellectual Property.
(a) Pre-Approval. Service Provider shall not use any Pre-Existing Intellectual Property in connection with this Agreement unless Service Provider (i) has specifically identified such Pre-Existing Intellectual Property in the applicable SOW and (ii) has the right to use such Pre-Existing Intellectual Property for Company (and Company’s licensees’) benefit and to issue the licenses set forth in this section.
(b) License. If Service Provider incorporates any Pre-Existing Intellectual Property into a Deliverable or furnishes any Pre- Existing Intellectual Property in conjunction with a Deliverable, Service Provider hereby grants Company a non-exclusive, royalty-free, irrevocable, worldwide, perpetual license to: (i) make, have made, sell, use, execute, reproduce, modify, adapt, display, perform, distribute, make derivative works of, import, and disclose the Pre-Existing Intellectual Property or products and services using the Pre-Existing Intellectual Property in conjunction with the use of the Deliverable and (ii) authorize or sublicense others from time to time to do any or all of the foregoing.
8. Payment.
In exchange for Service Provider’s obligations under this Agreement, Company shall pay Service Provider the fees set forth in the applicable SOW. All payments are due in U.S. dollars within the later of forty-five (45) days of Company’s receipt of an undisputed invoice. Service Provider shall not invoice Company until Company’s acceptance of the Services or Deliverables (as applicable) is received in accordance with the payment schedule set forth in the applicable SOW. Company shall not reimburse Service Provider for any expenses unless such expenses are specified in the applicable SOW. When specified in the applicable SOW, Company will pay actual and reasonable, pre-approved travel and related expenses incurred by Service Provider in performing the Services, but only in accordance with Company’s then-current travel and expense policies. Service Provider acknowledges that this Section 8 sets forth the only compensation which Service Provider is entitled to receive in exchange for the Services and that Service Provider shall not be entitled to any other payments, reimbursements, royalties or consideration of any kind.
9. Term and Termination.
This “Term” of this Agreement remains in effect until terminated in accordance with this Section 9. Either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement within 30 days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days thereafter). Company may terminate this Agreement at any time for any reason and without warning. Should Company exercise this right, it shall pay Service Provider up until the day of termination. Notwithstanding any of the above methods of termination, this agreement remains in place for the term as specified in the SOW. All of the provisions of this Agreement shall survive any termination or expiration except Sections 2 (Services), 3 (No Sub-Service Provider), 4 (Changes) and 8 (Payment) (except that Section 8 shall survive with respect to payments earned prior to termination).
10. Independent Service Provider.
10.1 Obligation to Pay Tax. Service Provider shall be solely responsible and liable for any employment related taxes, social security payments, insurance premiums or other employment benefits or contributions required by law respecting Service Provider’s performance of the Services or receipt of the fee by Service Provider, or both (including any interest or penalties incurred in respect of such payments).
10.2 Tax Indemnity. Service Provider shall indemnify and keep indemnified Company for all time on demand from and against any and all costs, claims, penalties, liabilities and expenses incurred in respect of income tax, social security or other contributions due by Service Provider in relation to the provision of the Services.
10.3 Deductions. Without prejudice to the indemnity in Section 10.2, if for any reason, Company shall become liable to pay, or shall pay, any taxes or other payments referred to in Section 10.1, Company shall be entitled to deduct from and/or off-set any amounts payable to Service Provider all amounts so paid or required to be paid by it in that respect.
10.4 No Eligibility for Benefits. Neither Service Provider nor any of Service Provider’s employees or Sub-Service Providers will be eligible for any benefits (including, without limitation, stock options, health insurance or retirement benefits) normally provided by Company to its employees.
10.5 Background Checks. Service Provider represents and warrants that it conducts industry-standard background checks on all of its employees and subcontractors including, without limitation, criminal background checks, social security traces, legal right to work and past employment verification. Service Provider shall conduct any additional background checks, at its expense, that may be required by either Company or a Company customer or client.
Prohibited Assignments. Service Provider shall not assign any Service Provider Personnel to perform Services if the Background Check reveals, or Service Provider otherwise has knowledge, that such individual:
11. Confidential Information.
Other than in the performance of the Agreement, neither Service Provider nor Service Provider’s agents, employees, or Sub-Service Providers shall use or disclose to any person or entity any Confidential Information of Company (whether in written, oral, electronic or other form), which is obtained from Company or otherwise prepared or discovered either in the performance of this Agreement, through access to Systems (as defined below), or while on Company’s premises. The provisions of this section relating to use and disclosure shall not apply to any information that: (i) is rightfully known to Service Provider prior to disclosure by Company, (ii) is rightfully obtained by Service Provider from any third party without restrictions on disclosure, (iii) is or becomes available to the public without restrictions; or (iv) is disclosed by Service Provider with the prior written approval of Company. Service Provider warrants and represents that each employee, agent, or Sub-Service Provider who performs work under this Agreement has been informed of the obligations contained herein and has agreed to be bound by them. This obligations set forth in this section shall survive any expiration of termination of this Agreement.
12. Systems Security and Access.
12.1 Access to Company’s Systems. Access, if any, to Company’s computer, telecommunication or other information systems (including computers, networks, voice mail, etc.) or those of any Company client or customer (collectively, “Systems”) is granted solely to facilitate the business relationship described in this Agreement, and is limited to those specific Systems, time periods, and personnel designated by Company. Access is subject to business control and all applicable policies, laws and regulations. Service Provider will abide by all information protection or data privacy policies of Company or customers of Company, and all applicable laws and regulations. Any access to or use of any Systems except as expressly authorized is expressly prohibited. Without limiting the foregoing, Service Provider warrants that it has adequate security measures in place to comply with the above obligations and to ensure that access granted hereunder will not impair the integrity and availability of Systems. Upon reasonable notice, Company may audit Service Provider to verify Service Provider’s compliance with these obligations.
12.2 Access to Company’s Software. Solely to the extent Company determines it is necessary for Service Provider to have access to certain Company software or tools (“Company Software”) in order to perform the Services, subject to the terms and conditions of this Agreement, Company grants to Service Provider a non-exclusive, non-transferable, non-sublicensable, royalty-free license, to use the Company Software solely for the performance of the Services. Service Provider will not use any of the trade secrets, algorithms, inventions, or technology revealed or embodied by the Company Software except as necessary to perform the Services. No right is granted by this Agreement for the use of the Company Software directly or indirectly by others. Service Provider may not sublicense or otherwise transfer, by contract, operation of law, or otherwise, any of the rights granted to Service Provider herein. All rights not expressly licensed herein are reserved to Company and its suppliers.
12.3 Workstation Security Requirements. Service Provider warrants that any equipment used to access Company’s or Company’s customer’s systems (“Protected Systems”) will meet the following minimum requirements:
12.4 Network Security Requirements. All access to Protected Systems must be through a software or hardware firewall. If wireless networking is used at any point along the data path, the wireless network must be secured using the WPA2 standard (note: TKIP must not be used). Access to Protected Systems via open public networks is strictly prohibited.
12.5 Data Security Requirements. Service Provider will abide by the following with respect to storage and deletion of Protected Information and Confidential Information:
Data Storage. Service Provider will not store or retain any Protected Information or Confidential Information except as necessary to perform Services under the Agreement. Service Provider will not transfer any Protected Information to a personal storage device or service such as Dropbox, Box.com, or similar.
Data Deletion. Within 30 calendar days of the Agreement’s expiration or termination, or sooner if requested by Company, Service Provider will securely destroy all copies of Protected Information and Confidential Information (including any automatically created archival copies). Upon Company’s request, Service Provider will promptly return to Company a copy of all Protected Information and Confidential Information within 30 days and, if Company also requests deletion of the Protected Information and Confidential Information, will carry that out as set forth above. All deletion of Protected Information and Confidential Information must be conducted in accordance with best practices for deletion of sensitive data. For example, secure deletion from a hard drive is defined at a minimum as a seven-pass write over the entire drive. Tapes, printed output, optical disks, and other physical media must be physically destroyed by a secure method, such as shredding performed by a bonded provider. Upon Company’s request, Service Provider will provide a “Certificate of Deletion” certifying that Service Provider has deleted all Protected Information and Confidential Information. Service Provider will provide the “Certificate of Deletion” within 30 days of Company’s request.
12.6 Other Security Requirements. For all Service Provider systems where it is available, two-factor authentication must be enabled. Service Provider warrants that all personnel complete a mandatory security best practices training on a minimum of an annual basis, covering topics such as spam, phishing, spear phishing, malware, ransomware, and social engineering.
12.7 Compliance with Artificial Intelligence Acceptable Use and Data Privacy Policy. Service Provider agrees to comply with Company’s Artificial Intelligence Acceptable Use and Data Privacy Policy, as amended from time to time, in its access, use, and handling of any personal data or confidential information obtained in the course of providing Services. This policy is located at 10kview.com/ai-acceptable-use-data-privacy.
13. Indemnification.
Service Provider will defend, indemnify and hold harmless Company, their officers, directors, employees, sub-licensees, customers and agents from any and all direct or indirect claims, losses, liabilities, damages, expenses and costs (including legal fees and court costs) arising from or relating to: (i) any breach or alleged breach of any representation, warranty or other provision of this Agreement by Service Provider, (ii) any infringement or alleged infringement by Service Provider, the Services or any Deliverable of any third-party intellectual property rights; and (iii) any act, neglect or default of Service Provider or any person authorized by Service Provider to act on Service Provider’s behalf, including any personal injury or property damage (a “Claim”). Company shall give Service Provider written notice of any such Claim and Company has the right to participate in the defense of any such Claim at its expense. In no event shall Service Provider settle any Claim without Company’s written consent (which consent shall not be unreasonably withheld). From the date of written notice from Company to Service Provider of an such Claim, Company shall have the right to withhold from any payments due Service Provider under this agreement the amount of any defense costs, plus additional reasonable amounts as security for Service Provider’s obligations under this section.
14. Limitation of Liability.
EXCEPT FOR AN INDEMNIFICATION CLAIM, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES DUE TO BE PAID TO SERVICE PROVIDER UNDER THIS AGREEMENT.
15. Insurance.
Service Provider is solely responsible for maintaining such adequate health, automobile, workers’ compensation, unemployment compensation, disability, liability, and any other type of insurance required by law or as is common practice in Service Provider’s business including a comprehensive policy of insurance to cover Service Provider’s liability in respect of any act, omission or default for which Service Provider may himself become liable, or become liable to indemnify the Company under this Agreement (including insurance to cover third party, employer’s and professional liability claims). The following policies and minimum levels of coverage are required:
Upon request, Service Provider shall provide Company with certificates of insurance or evidence of coverage before commencing performance under this Agreement. Service Provider shall acquire additional insurance, at its expense, if so required by either Company or an Company customer or client. Service Provider shall provide adequate coverage for any Company property under the care, custody or control of Service Provider or Service Provider’s personnel.
16. Compliance with Laws and Other Regulations.
Each party shall perform all of its obligations under this Agreement in compliance at all times with all applicable laws, including, but not limited to, those relating to privacy and data protection. Service Provider shall additionally comply with all regulations, policies and guidelines of Company and Company customers or clients.
17. Anti-Corruption, Bribery, Kickbacks, and Fair Dealing.
10K Advisors is committed to ethical business practices. We expect all Service Providers to conduct business with high ethical standards in compliance with the law.
Never resort to bribery, facilitation payments, kickbacks, or corrupt practices.
Bribery is offering or giving something of value in order to improperly influence the recipient’s actions. Bribery is illegal in every jurisdiction in which 10K Advisors does business.
A facilitation payment is a tip or small payment made to a government official in order to expedite a routine government action, such as issuing a permit or providing utility service. This is illegal in most jurisdictions and not allowed.
A kickback is the return of a sum paid (or due to be paid) as a reward for fostering a business arrangement. Accepting or offering a kickback violates this Code.
Bribery is illegal in the U.S. and most other countries and the consequences are severe, including jail sentences.
Relationships with government officials: If you interact with government officials on Company’s’ behalf, be particularly careful about gifts, meals, and entertainment. Laws and regulations governing what you can give government officials are very strict and vary from country to country.. Be sure you know the rules for your region.
Contact compliance@10kview.com before offering or providing any gifts, meals, or entertainment to government officials. A government official can be a national or local government employee, a political candidate, a party official, a member of a royal family, or an employee of a government-controlled entity.
If you see something suspicious, say something by reporting safety and security concerns to the 10K Advisors’ Delivery Leadership by emailing compliance@10kview.com.
Fair Dealing: Company is committed to being honest and truthful with all of its customers, vendors, and other business partners. Never misrepresent the quality, features, or availability of the company’s products, and never do anything illegal or unethical to win business.
Trying to obtain information by lying or pretending to be someone you are not is unethical, could be illegal, and is generally in poor taste. Don’t do it. And if you receive another company’s confidential or proprietary information by mistake, return or destroy it.
18. Publicity.
Neither party shall publicize or disclose the existence or terms of this Agreement to any third party without the prior written consent of the other, except as may be required by law. In particular, no press releases shall be made without the mutual written consent of each party.
19. Records.
Service Provider will keep and maintain complete and accurate records in connection with its performance of the Services and all fees charged to Company under this Agreement and will retain these records for at least three (3) years after the amounts documented in these records become due. Company may audit such records during regular business hours upon reasonable advance notice and subject to reasonable confidentiality procedures not more than twice per year.
20. Non-Disparagement.
At no time shall Service Provider utter, issue or circulate any false, inappropriate or disparaging statements, remarks or rumors about Company, its members, managers, representatives or employees, or the customers of Company, or any of Company’s affiliates, or about any actual or potential competitors of any of such parties. Similarly, at no time shall Company or any of its members, managers, employees or representatives utter, issue or circulate any false, inappropriate or disparaging statements, remarks or rumors about Service Provider.
21. Non-Compete; Non-Interference and Non-Solicitation.
During the Term and for a period of one year after expiration of the Term or the sooner termination of this Agreement (collectively, the “Restriction Period”), neither Service Provider, nor any of Service Provider’s officers, directors, shareholders, partners, members, managers, representatives, employees, or agents, as may be applicable, shall directly or indirectly (through the use of holding companies, related parties, affiliated parties or otherwise), whether for compensation or otherwise, alone, in a partnership, or in conjunction with any person or persons, firms, association, syndicate, corporation, limited liability company, or other entity or venture, as an agent, consultant, principal, partner, officer, employee, trustee, director, shareholder, member or in any other capacity, (i) own, operate, manage, join, control, advise, consult with, or participate in the ownership, management, operation, or control or furnish any capital or financing to, or permit Service Provider’s name or goodwill to be used in connection with, or directly or indirectly receive compensation from, or be connected in any manner with, the sale and/or rendering of services to any individuals or entities who were Accounts, customers or vendors of Company during the Restriction Period, wheresoever located, to the extent such goods, services and/or products are competitive with Company’s Business and/or similar with those goods, services and/or products sold or provided by Company; provided, however, that, notwithstanding the foregoing, Service Provider may render or sell during the Restriction Period any commercially unrelated services not otherwise competitive with the goods or service rendered by Company or similar to Company’s Business during the Restriction Period; or (ii) interfere, or in any way assist any other person in interfering, with Company’s business relationships with any of its customers, licensors, licensees, vendors, suppliers or agents to any extent; or (iii) solicit or entice away from either party’s employment, or in any way assist in soliciting or enticing away from either party’s employment, or hire or assist any other party in hiring, any persons who are or were employees, independent contractors or sales representatives of either party’s during such Restriction Period.
22. General.
Neither party may assign this Agreement without the prior written consent of the other party and any attempt to do so will be void. Notwithstanding the foregoing, Company may assign this Agreement to an entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or part of the voting securities or assets of Company upon written notice to Service Provider. Any notice or consent under this Agreement will be in writing to the address or email address specified below within the signature block in the accompanying SOW. Terms and conditions of this agreement are subject to change without prior notice and are effective upon any such update. No provision of this Agreement will be waived by any act, omission or knowledge of a party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving party. Service Provider will abide by all policies and guidelines of Company and customers of Company. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. This Agreement is governed by and to be construed in accordance with Kentucky law. Each party hereby submits to the exclusive jurisdiction state or federal courts located in Louisville, Jefferson County courts as regards any claim, dispute or matter arising out of or in connection with this Agreement and its implementation and effect. Any waivers or amendments shall be effective only if made in writing signed by a representative of the respective parties. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties, and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. In the event that Company loans Service Provider any equipment during the course of its engagement, Service Provider shall be responsible for returning it in the same condition in which Service Provider received it. Such equipment will be loaned as is with all faults. Company reserves the right to charge Service Provider for any damage it finds, beyond the normal wear and tear.
