(a) These Master General Terms and Conditions (these “Terms”) are the only terms that govern the provision of services by Capita Works, Inc., a Nevada corporation (“Capita US”) to the Client named in the Order Confirmation (“Client”). Capita US and Capita US’ affiliate, Cápita Right People, S. de R.L. de C.V. (“Capita Mexico”) are referred to collectively, as the “Capital Group.”
(b) The accompanying (i) Order Confirmation, and any subsequent Order Confirmations that are executed by the parties hereto from time to time which shall be sequentially numbered and shall specify that they are made subject to these Terms (each, an “Order Confirmation”), and (ii) these Terms (collectively, this “Agreement”), comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, proposals, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Confirmation, these Terms shall govern, unless the Order Confirmation expressly states that a particular provision of the Order Confirmation shall control (and in such event, only the identified provision in the Order Confirmation shall control with respect to that Order Confirmation only, and not to any other or subsequent Order Confirmations, and the balance of these Terms shall otherwise control).
(c) These Terms prevail over any of Client’s general terms and conditions regardless whether or when Client has submitted its request for proposal, purchase order, or such terms. Provision of services to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms or the Agreement.
(d) If Client has previously executed an agreement with Capita Mexico regarding the provision of Capita Personnel to Client (“Prior Agreement”), then this Agreement shall supersede and replace in its entirety the Prior Agreement from and after the Effective Date of this Agreement.
2. Term; Services.
(a) Term. This Agreement shall commence upon the Effective Date specified in Order Confirmation No. 1 and shall be in effect for a period of one (1) year (the “Initial Term”), which shall be automatically extended on a year-to-year basis (such Initial Term and all extensions, the “Term”).
(b) Services. Capita US shall provide, and Client shall accept, the services to Client as described in this Agreement (the “Services”) in accordance with these Terms.
(i) Specifications; Capita Personnel. A member of the Capita Group hires or otherwise engages individuals who reside outside of the United States pursuant to certain specifications requested by Client, including the number of individuals required, education, technical skills, experience, rolls, responsibilities and other qualities, desired working hours and times as specified by Client from time to time (“Specifications,” and each or all of such individuals hired or engaged by the member of the Capita Group, the “Capita Personnel”). Capita US shall use commercially reasonable efforts to meet any performance dates specified in this Agreement, provided that any such dates shall be estimates only.
(ii) Trial Period. The member of the Capita Group shall hire or engage each Capita Personnel on an initial ninety (90) day trial period (“Trial Period” and such Capita Personnel under the Trial Period, the “Trial Capita Personnel”). Capita US shall request approval via email by Client on the eightieth (80th) day prior to the expiration of the Trial Period for the permanent hiring by the member of the Capita Group of the particular Trial Capita Personnel. In the event that Client does not notify Capita US by the eighty fifth (85th) day of the Trial Period that Client desires that such Trial Capita Personnel be terminated, then it shall be deemed that Client desires that such Trial Capita Personnel continue to be permanently employed or engaged beyond such Trial Period.
(iii) Client Work. The work performed and deliverables provided by the Capita Personnel shall be pursuant to Client’s guidance and supervision of the Capita Personnel, and is referred to as the “Client Work.” The term “Services” as used in this Agreement does not include “Client Work.” Unless otherwise agreed upon by the parties hereto, the Capita Personnel shall perform the Client Work using such Capita Personnel’s own facilities, computers and communications equipment and the Capita Group is not obligated to provide the same.
3. Capita US’ Obligations.
Capita US shall perform the following Services:
(a) coordinate with the Client in providing the Client’s Specifications for the recruitment and selection of the prospective Capita Personnel. Subject to Section 6(d), such recruitment activities for the Capita Personnel shall be at no cost to Client.
(b) coordinate with the Client in the hiring, engagement or termination of the Capita Personnel;
(c) coordinate with the Capita Group for the provision of general HR duties, including time, attendance, benefits, etc. (collectively, “HR Activities”); and
(d) act as Client’s the “one point of contact” with the Capita Group with respect to the transactions under this Agreement. Capita US’ initial contact person is specified in the Order Confirmation.
4. Client’s Obligations.
Client shall timely:
(a) provide Client’s Specifications to Capita US for the recruitment of proposed Capita Personnel;
(b) provide Client’s input to Capita US for the approval of the proposed Capita Personnel to be hired or engaged;
(c) provide such access to Client’s systems, telecommunications and computer equipment, including IT systems, as may reasonably be required for the Capita Personnel to perform their Client Work;
(d) provide such Client materials, information or policies, as the Capita Group or Capita Personnel may require to carry out the Services or the Client Work, as appropriate, in a timely manner and ensure that such Client materials or information are complete and accurate in all material respects;
(e) provide, and maintain as necessary, such Client equipment, including laptops, samples, manuals, sales materials, computer or communications equipment and other materials or equipment as the Capita Personnel may require to carry out the Client Work (“Required Equipment”);
(f) obtain and maintain all necessary licenses and consents, and comply with all applicable Laws, in relation to the Services and Client Work, including the access to any software required by Client to be used by Capita Personnel in performing the Client Work;
(g) provide such guidance to, as well as training and supervision of, the Capita Personnel as shall be required to carry out the Client Work in a timely and effective manner;
(h) provide to Capita US, as necessary, information regarding unsatisfactory performance of any Capita Personnel as specified in Section 6 below;
(i) provide to Capita US information as to perceived or actual labor conflicts between Client and Capita Personnel on such forms as to be provided by Capita US;
(j) cooperate with the Capita Group in all matters relating to this Agreement;
(k) comply with all applicable laws, ordinances and regulations, including those relating to privacy of personal information (collectively, “Laws”);
(l) specify normal working hours for the Capita Personnel (unless otherwise agreed upon, such normal working hours shall be limited to 9 am to 5 pm PT/PST, Monday through Friday, excluding Federal or State holidays); and
(m) respond promptly to any Capita US request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Capita US to provide the Services in accordance with the requirements of this Agreement. Client’s initial contact person is specified in the Order Confirmation.
5. Client’s Acts or Omissions.
If Capita US’ performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, Capita US shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
6. Changes in Capita Personnel.
Client acknowledges that the Capita Personnel recruited and hired by the member of the Capita Group pursuant to Client’s Specifications are hired or engaged thereby for Client’s account, unless Client’s Specifications require part time Capita Personnel, in which case such Capita Personnel may also be assigned to other Capita Group clients. Accordingly, the following provisions shall apply if Client wishes to increase the number of Capita Personnel assigned to Client’s account, terminate Client’s use of one or more Capita Personnel assigned to Client’s account, or substitute new Capita Personnel for Capita Personnel deemed unsatisfactory to Client:
(a) Increase in Capita Personnel. Client must notify Capita US in writing at least fifteen (15) days in advance (“Capita Personnel Change Request”) of the date that Client requires the new desired Capita Personnel to commence their employment or engagement with the member of the Capita Group. Such Capita Personnel Change Request shall provide the Client’s Specifications to enable Capita Group to recruit, provide for Client’s final determination, the proposed Capita Personnel and to hire/engage and onboard the new Capita Personnel.
(b) Substitution of Capita Personnel. If Client is not satisfied with the performance of a particular Capita Personnel after the expiration of the Trial Period, and desires to terminate the existing Capita Personnel and substitute a new Capita Personnel, then Client must follow the procedures set forth in Section 6(c) (Unsatisfactory Performance; Termination of Capita Personnel) and make a Capita Personnel Change Request pursuant to Section 6(a) above for the new proposed Capita Personnel. In any event, including where a Capita Personnel voluntarily leaves the employ of the member of the Capita Group after the Trial Period, Client shall be required to pay to Capita US (i) the Termination Fee and any additional amounts described in Section 6(d) below for each terminated Capita Personnel; and (ii) a recruiting fee for the prospective substituted new Capita Personnel equal to half of the monthly Fee for such proposed new Capita Personnel (the “Substitute Capita Personnel Recruiting Fee”). By way of example but not of limitation, if the monthly Fee for the proposed new Capita Personnel is $1500/month, then Client would pay as the Substitute Capita Personnel Recruiting Fee $1500/2=$750.00. The Substitute Capita Personnel Recruiting Fee is due and payable to Capita US within ten (10) days after Capita US has provided Client with the monthly Fee for such proposed substituted Capita Personnel after receiving Client’s Capita Personnel Change Request.
(c) Unsatisfactory Performance; Termination of Capita Personnel.
(i) Warning to Capita Personnel of Unsatisfactory Performance. Client acknowledges that pursuant to the Federal Labor Law of the United Mexican States (“Mexican Labor Law”), certain procedures must be followed when the Client desires to no longer receive the Client Work from a particular Capita Personnel, including the provision of tangible and sufficient evidence to justify termination of such Capita Personnel with cause. Such requirements may include one or more written warnings by the Capita Group to such Capita Personnel of unsatisfactory performance (“Unsatisfactory Performance Warning”).
1. Client may provide oral feedback directly to Capita Personnel about their performance, provided that Client shall document any unsatisfactory performance in a form to be provided to Client by Capita US (“Unsatisfactory Performance Form”), and Client shall forward such Unsatisfactory Performance Form to Capita US. Capita US shall ensure that the Capita Group provides to the Capita Personnel the Unsatisfactory Performance Warnings as may be required pursuant to Mexican Labor Law. Client acknowledges that because the Capita Personnel are not employees of Client, Client is not authorized to provide such Unsatisfactory Performance Warnings to, or terminate, the Capita Personnel.
2. Client may at any time advise Capita US about the provision of Client Work, indicating the specific situations of any incident or the quality of the Client Work provided by any Capita Personnel to allow Capita Mexico to take such actions to sanction or attempt to improve the performance of such Capita Personnel as may be required by Mexican Labor Law.
(d) Termination Fee. In any event, with respect to any Capita Personnel who have been hired or engaged by a member of the Capita Group but who have been terminated or who have left the employ of the Capita Group after the Trial Period (a “Severed Capita Personnel”), Client shall pay to Capita US, pursuant to an invoice to be provided to Client, a “Termination Fee” equal to (1) three (3) months of Client’s rate for such Severed Capita Personnel; and (2) a ten percent (10%) administrative expense fee (“Administrative Fee”). By way of example but not of limitation, if such monthly rate for the particular Severed Capita Personnel is $1500, then the Termination Fee for such Severed Capita Personnel is 3 months x $1500 = $4500. + $450 = $4950. Capita US shall ensure that the Severed Capita Personnel are paid the termination fees as required by Mexican Labor Law. Client acknowledges that Capita Group has hired or engaged the Capita Personnel to service Client’s account and that if, for any reason, there are Severed Capita Personnel, the Capita Group will be obligated to pay termination fees and incur other costs and expenses with respect to such Severed Capita Personnel. Accordingly, Client agrees that it would be impracticable or extremely difficult to fix actual damages, therefore the Termination Fee, including any Administrative Fee, is not a penalty, but constitutes liquidated damages and is a reasonable approximation made at the Effective Date of this Agreement of the costs and expenses and other damages that Capita Group will incur with respect to such Severed Capita Personnel. Client agrees that in addition to such Termination Fee, any additional termination fee required by Mexican Labor Law in excess of the Termination Fee (“Additional Termination Fee”) shall be invoiced to Client and shall be paid by Client within ten (10) days after the date of Capita US’ invoice therefor, plus an Administrative Fee based on such Additional Termination Fee. In the event that the Capita Group obtains from such Severed Capita Personnel a settlement or other termination agreement, each of Capita US, Capita Mexico and Client shall be named as a releasee of all claims by such Severed Capita Personnel.
(e) Change in Services. Notwithstanding anything to the contrary, Capita US may, from time to time, change the Services without the consent of Client provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Order Confirmation.
7. Fees and Expenses; Deposit; Payment Terms; Interest on Late Payments.
(a) Fees. In consideration of the provision of the Services by Capita US and the rights granted to Client under this Agreement, Client shall pay the fees set forth in the Order Confirmation (“Fees”). Such Fees to an annual increase of the greater of (i) three percent (3%) over the then-current year’s Fees, (ii) such increase as may be required by applicable Law; or (iii) as otherwise may be mutually agreed upon by Client and Capita US. As part of the Fees, overtime work to the extent agreed upon by the Capita Personnel, shall be invoiced by Capita US and paid by Client to Capita US.
(b) Expenses. Client agrees to reimburse Capita US for all reasonable travel and out-of-pocket expenses incurred by Capita US in connection with the performance of the Client Work or Services to the extent pre-approved by Client (“Expenses”). If such Expenses are incurred by Capita Personnel, then Capita US shall invoice Client for such Expenses, including a ten percent (10%) markup.
(c) Deposit. Client shall pay to Capita US a deposit equal to the full month’s rate specified on the Order Confirmation for the initial Capita Personnel (“Deposit”), payable as follows: (i) within five (5) days after full execution of the Order Confirmation, Client shall pay Capita US an initial deposit of US$250.00 (“Initial Deposit”); and (ii) prior to the tender of a Trial Period job offer to a prospective Capita Personnel (“Offer”), the balance of the Deposit. The Initial Deposit is deemed earned when paid to Capita US and is non-refundable. Capita Group shall not be obligated to provide the Offer unless and until the entire Deposit has been received by Capita US. Such Deposit may be held in Capita US’s general accounts and comingled with Capita US’ other funds. No interest shall be payable on such Deposit. The Deposit may be applied to any outstanding amounts due and payable by Client pursuant to this Agreement. Within thirty (30) days after expiration or termination of this Agreement, Capita US shall refund to Client any remaining Deposit.
(d) Invoicing and Payment Terms. Capita US shall invoice Client every two weeks for Fees and Expenses and Client shall pay all invoiced amounts due to Capita US within seven (7) days from the date of Capita US’ invoice. Client shall make all payments hereunder in US dollars by wire transfer, ACH transfer or via credit card pursuant to a credit card authorization provided by Client. All payments made by Client via credit card shall incur a processing fee of three percent (3%) which is payable by Client at the time of processing such credit card payment.
(e) Payment Default. In the event payments are not received by Capita US within fourteen (14) days after the date of Capita US’ invoice (a “Payment Default”), Capita US may do any or all of the following:
(i) charge interest on any such unpaid amounts at a rate of 1% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid (“Default Interest”);
(ii) suspend performance for all Services until payment has been made in full, provided however that Fees and Expenses shall continue to accrue during such suspension period;
(iii) apply all or a portion of the Deposit toward amounts owed by Client; and
(iv) terminate all or part of this Agreement pursuant to a notice from Capita US to Client specifying the termination date in such notice (“Payment Default Termination Notice”).
(f) Termination for Payment Default. In addition to Capita US’ rights under Section 7(e) above, if there is a Payment Default which results in Capita US terminating this Agreement, then Client shall pay Capita US for each Capita Personnel assigned to Client’s account (1) a Termination Fee and such other fees and expenses pursuant to Section 6(d); (2) an “Early Termination Fee” equal to ten percent (10%) of the amounts specified in Section 7(f)(1); (3) all Fees and expenses then due and payable to Capita US, up to and including the termination date specified in the Payment Default Termination Notice; (4) such other fees, costs and expenses that may be incurred by the Capita Group with respect to Client’s Payment Default or other default; and (5) Default Interest with respect to the foregoing.
Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder.
9. Intellectual Property.
“Intellectual Property Rights” means all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights. Prior to the member of the Capita Group making an offer of employment to the prospective Capita Personnel, Client may provide Capita US with Client’s reasonable form of assignment of Intellectual Property Rights and non-disclosure agreement (“Client Documents”) for the Capita Personnel to execute and deliver in favor of Client with respect to Client Work generated by such Capita Personnel; provided however that Capita US cannot guarantee that such Capita Personnel will execute or deliver such Client Documents. Client shall notify Capita US prior to making such offer to prospective Capita Personnel whether the execution and delivery of such Client Documents shall be a condition of Capita Group’s offer to such prospective Capita Personnel. Notwithstanding anything to the contrary, no member of the Capita Group shall be liable in any way, or makes any representation or warranty whatsoever with respect to the non-infringement or misappropriation of any Intellectual Property Rights.
10. Confidential Information.
“Confidential Information” means all non-public, confidential or proprietary information of the Discloser, including trade secrets, technology, information pertaining to business operations, plans and strategies, financial information, and information pertaining to customers, pricing, marketing, or Discloser’s employees or independent contractors, whether disclosed orally or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential.”
(a) Non-Disclosure of Confidential Information. Each of Capita US, for itself and the other members of the Capita Group, and Client (each, a “Recipient”) recognizes that in carrying out this Agreement, they may receive, develop, or otherwise acquire Confidential Information of the other party to this Agreement (each, a “Discloser”). All Confidential Information which the parties may now possess, obtain or create during or after the term of this Agreement will be held confidential by the parties for the benefit of the other, using the same standard of care that each uses to protect its own confidential and proprietary information to prevent the disclosure of the Confidential Information, but in no event less reasonable care. Except to the extent expressly authorized herein, Recipient will not directly or indirectly reveal, report, publish or disclose such Confidential Information to any person or entity not expressly authorized by the Discloser to receive such Confidential Information, except for the benefit of the Discloser and in the course of their work hereunder. Recipient will not disclose any of Discloser’s Confidential Information, except to Recipient’s, its affiliates and their respective employees, officers, directors or agents, who have a need to know, and who agree to abide by non-disclosure terms at least as comprehensive as those set forth herein (collectively, “Authorized Recipients”). For the purposes of this Section 10 (Confidential Information), the term “employees” shall include independent contractors. Recipient will not make any copies of the Confidential Information received from Discloser except as necessary for the Authorized Recipients to perform their duties pursuant to this Agreement. Recipient shall ensure that each copy of the Confidential Information allowed hereunder contains and states the same confidential or proprietary notices or legends, if any, which appear on the original.
(b) Disclosure Exception. The foregoing will not apply to the extent (i) Recipient is required to disclose any Confidential Information by applicable law or legal process (provided that the Recipient promptly notifies Discloser so that it may, at Discloser’s expense, employ all legal means to quash such disclosure); (ii) Recipient can demonstrate such allegedly Confidential Information (1) is, as of the time of its disclosure, or hereafter becomes part of the public domain without violation of this Agreement by the Recipient; (2) is already in Recipient’s possession, without the fault of the possessing party, as evidenced by written documents prior to the disclosure thereof by the Discloser, or (3) is subsequently learned, without violation of this Agreement by the Recipient, from a third party not under a confidentiality obligation to the Discloser. Client agrees that although the member of the Capita Group hiring or engaging the Capita Personnel requires that such individual enter into non-disclosure agreements with such member of the Capita Group for the protection of Confidential Information, none of the Capita Group shall be liable for the unauthorized disclosure by Capita Personnel of any Confidential Information belonging to Client, its affiliates or subsidiaries, and their respective employees, officers, directors or agents. In addition, the Capita Group may use Client’s name, logo and general description of Client’s business in the Capita Group’s marketing materials in any media.
(c) Recipient agrees to use the Confidential Information only to provide, or make use of the Services in accordance with this Agreement.
(d) Discloser shall be entitled to injunctive relief for any violation of this Section.
11. Non-Circumvention and Non-Solicitation.
(a) Non-Circumvention. It is expressly understood by Client and Capita US, for itself and each member of the Capita Group, that the disclosures contemplated herein are for purposes of furthering the purposes of this Agreement, in which each party takes an active role and profits more than either party might have, absent engagement in, or facilitation of, this Agreement. During the Term and for twelve (12) months after the expiration or termination of this Agreement, Client shall not, directly or indirectly, except in collaboration with or with the prior express written consent of Capita US: (i) enter into any transaction with any party introduced to Client by any member of the Capita Group (the “Introduced Party”) similar to, in competition with, or which otherwise could have the effect of preventing the Capita Group from receiving the full benefit of, the transactions contemplated by this Agreement; (ii) solicit the Introduced Party to enter into any such transaction; or (iii) induce, solicit, procure, or otherwise encourage its agents, employees, directors, officers and the employees of Client’s affiliates, parent company and subsidiaries, or any third party, to enter into any such transaction.
(b) Non-Circumvention through Commercialization. It is expressly understood by the parties that the discussions and disclosures of Confidential Information are for purposes of furthering this Agreement. During the Term and for twelve (12) months after the expiration or termination of this Agreement, Client hereby expressly agrees not to, based on Capita Group’s Confidential Information (a) circumvent this Agreement; (b) improve Client’s own products or services; (c) create new products or services related to the discussions and disclosures; (d) enable any third party to develop or improve such third party’s own products or services that result in competition with any member of the Capita Group; or (e) otherwise commercialize anything related to the subject matter covered in the discussions and disclosures outside of the confines of this Agreement.
(b) No Solicitation. Client acknowledges and agrees that the Capita Group has spent considerable time, money, and effort in searching for, hiring or engaging and training its employees and subcontractors for the provision of the Services and that such investment constitutes trade secrets belonging to the Capita Group, which trade secrets would be lost if Client appropriated the same, causing harm to the Capita Group. Accordingly, to the extent allowed by applicable Law, during the Term and for twelve (12) months after the expiration or termination of this Agreement, neither Client, nor its parent, affiliates or subsidiaries will directly or indirectly solicit or offer employment to, or engage any, employee or subcontractor of the Capita Group who is involved in the provision or facilitation of the Services or Client Work; provided however that a general solicitation made by Client via any media format that is not directed at a particular individual shall not be deemed a violation of this provision. In the event that Client, its parent, affiliates or subsidiaries, or anyone on behalf of Client (“Client Hirer”) does hire or engage any of the afore-described personnel of the Capita Group (“Subject Person”), then Client shall pay Capita US a fee equal to: (i) the salary and benefits paid by any member of the Capita Group to the Subject Person over the twelve (12) month period immediately prior to the hiring or engaging of the Subject Person by Client Hirer, or (ii) if the Subject Person was a subcontractor, the amount paid by the member of the Capita Group previously engaging the Subject Person to the Subject Person as the subcontractor’s fee over the twelve (12) month period immediately prior to the engagement of the Subject Person by Client Hirer.
12. NO OTHER REPRESENTATIONS OR WARRANTIES; NON-RELIANCE.
THIS SECTION SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND THE CAPITA GROUP HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, NONE OF THE CAPITA GROUP MAKES ANY WARRANTY OF ANY KIND THAT THE CAPITA PERSONNEL, SERVICES, DELIVERABLES, CLIENT WORK, THIRD-PARTY SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, INCREASE CLIENT’S SALES OR REVENUE, OR RETURN ON INVESTMENT, OR THAT ANY CLIENT WORK WILL BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES OR PRODUCTS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE, OR COMPLY WITH PRIVACY LAWS OR ACCESSIBILITY LAWS. CLIENT ACKNOWLEDGES AND AGREES THAT WITHOUT THIS WARRANTY DISCLAIMER SET FORTH IN THIS SECTION, CAPITA US WOULD NOT ENTER INTO THIS AGREEMENT WITH CLIENT.
13. Limitation of Liability.
(a) IN NO EVENT SHALL ANY OF THE CAPITA GROUP BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT CAPITA GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL THE CAPITA GROUP’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO CAPITA US PURSUANT THE APPLICABLE ORDER CONFIRMATION IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
(c) The limitation of liability set forth in Section 13(b) above shall not apply to (i) liability resulting from Capita US’s gross negligence or willful misconduct; and (ii) death or bodily injury resulting from Capita US’s negligent acts or omissions.
(a) Termination for Convenience. At any time during the Term of this Agreement, with at least ninety five (95) days prior written notice, either party may notify the other party that it shall terminate this Agreement (and all Order Confirmations) on the termination date specified in the notice (which shall be no fewer than 95 days from the other party’s receipt of such notice).
(b) Other Rights to Terminate.
(i) Capita US Default. Client may terminate this Agreement and all Order Confirmations thereunder, if Capita US has breached any material term of this Agreement and has not cured the same within thirty (30) days after Capita US receives Client’s written notice of such breach, provided however that if the default is of a nature that requires more than 30 days to cure, Capita US shall not be in default of this Agreement if it has commenced to cure during such initial 30 day period and thereafter diligently prosecutes such cure to completion.
(ii) Client Default. In addition to any remedies that may be provided under this Agreement, Capita US may terminate this Agreement with immediate effect upon written notice to Client, if Client:
(1) other than with respect to a Payment Default which is covered by Sections 7(e) and 7(f), fails to pay any amount when due under this Agreement and such failure continues for thirty (30) days after Client’s receipt of written notice of nonpayment;
(2) other than with respect to a Payment Default which is covered by Sections 7(e) and 7(f), has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or
(3) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
(a) Each Party to Provide. During the Term hereof, each of Capita US and Client will maintain in full force and effect, at such party’s own expense, insurance coverage as specified in this Section 15 to be carried by Capita US or Client, including adequate insurance to protect such insuring party and indemnify the other party and its affiliates against claims giving rise to indemnification pursuant to the indemnification provisions of this Agreement. All insurance policies purchased by each party shall have an A.M. Best rating of at least A-VII Excellent Rating. The requirement of a party to obtain or maintain, or its failure to obtain or maintain, the types or amounts of insurance required by this Section 15 shall not be interpreted to limit such party’s liability under this Agreement. Each party shall obtain and maintain during the Term the following:
(i) Workers’ Compensation or other social scheme insurance as required by applicable Law.
(ii) Employer’s Practices Liability insurance in amounts not less than US$1,000,000 (One Million U.S. Dollars).
(iii) Commercial General Liability insurance, for bodily injury and property damage, including blanket contractual liability, and products and completed operations, in the amount of US$2,000,000 (Two Million U.S. Dollars) in the aggregate and US$1,000,000. (One Million U.S. Dollars) per occurrence, for personal injury, including death, general liability, including property damage, bodily injury, personal and advertising injury.
(iv) Automobile Liability insurance for property damage and bodily injury covering all motor vehicles owned, hired, rented or used by the respective parties, their employees, agents, and contractors, and all motor vehicles not owned but used on behalf of such parties, their employees, agents and contractors, with a combined single limit of liability for each accident of not less than US$1,000,000 (One Million U.S. Dollars).
(b) Capita US to Provide. Capita US shall obtain and maintain during the Term of this Agreement the following:
(i) Commercial Crime Insurance, covering loss of Client’s funds and property in Capita Group’s’ care, custody or control and caused by dishonesty or theft, disappearance or destruction on the part of any agent, servant or employee of the Capita Group, up to $100,000. in the aggregate and per occurrence, for coverage consisting of (1) Employee Theft; (2) Forgery or Alteration; (3) Inside the Premises – Theft of Money and Securities; (4) Inside the Premises- Robbery or Safe Burglary of Other Property; (5) outside the Premises; (6) Money Orders and Counterfeit Money.
(ii) Professional liability insurance covering acts, errors or omissions arising out of, or failure to render, professional services under this Agreement. Such insurance will include limits of coverage of not less than US$1,000,000 (One Million U.S. Dollars) and will remain in effect for not less than one (1) year following the date of termination of this Agreement.
(c) Additional Insureds. Each of Client’s and Capita US’ Commercial General Liability policy, will contain language to the effect that the other party, its affiliates and their respective officers, directors, agents and employees, will be recognized as additional insureds as their interests may appear.
(d) Certificates of Insurance. Certificates of Insurance evidencing the required coverage and limits must be furnished to the other party prior to the commencement of the Term, and at such other times as requested by Client or Capita US, as appropriate. Each party shall provide the other party with at least thirty (30) days written notice prior to cancellation or reduction in the coverage of any of such policies.
(e) Waiver of Subrogation. To the extent permitted by applicable law, all policies required under this Section will contain a waiver of the insurer’s subrogation rights against the other party and its insurers.
(a) Client’s Indemnification. Subject to the conditions contained in Section 16(b), Client agrees to defend, indemnify, and hold harmless Capita US, its parent, subsidiaries, and affiliates, and each of its respective directors, officers, employees and agents (“Capita Parties”) from and against any claim, demand, obligation cause of action, debt, or liability (including reasonable attorneys’ fees) (collectively, “Losses”) arising from: (i) Client’s breach of any warranty, representation or obligation of Client under this Agreement; (ii) any claim that Client or Capita Personnel has violated any Laws or that any Client Materials or Client Work infringe or violate the publicity right, privacy right or the Intellectual Property Rights of a third party; (iii) any claim that the Client Work or Services do not comply with applicable Laws, including the Americans with Disabilities Act, as amended (“ADA”), or any similar state, federal or international Laws with respect to accessibility of the Client Work, Services or Deliverables by disabled or physically disadvantaged users (collectively “Accessibility Laws”); or (iv) any claim by Capita Personnel, governmental agencies, or third parties with respect to this Agreement whatsoever, including Capita Personnel’s employment, engagement or termination by any of the Capita Group, Client Work, or any actions or inactions by Client, its affiliates and their respective employees, officers, directors, agents or contractors.
(b) Conditions to Indemnity. In claiming any indemnification hereunder, Capita US shall promptly provide the Client with written notice of any claim which Capita US believes falls within the scope of the indemnifications provided by this Section 16. Capita US, shall at Client’s expense, reasonably assist in the defense of such claims, provided that the Client shall control such defense and all negotiations relative to the settlement of any such claim, and further provided that any settlement intended to bind, or impose any liability or admission of liability upon, any member of the Capita Group, shall not be final without such member of the Capita Group’s prior written consent.
(c) Claims by Capita Personnel.
(i) If any Capita Personnel, its successors, assigns or dependents file in Mexico or in the United States, any labor action against Client, Client will immediately notify Capita US of such situation and Client will have the right to: (i) submit its defense to the appropriate forum; (ii) negotiate and, when appropriate, resolve and settle the labor dispute, provided that any settlement intended to bind, or impose any liability or admission of liability upon, any member of the Capita Group, shall not be final without such member of the Capita Group’s prior written consent. In any event, Client shall pay all amounts that the competent authority awards.
(ii) If any Capita Personnel, its successors, assigns or dependents, file in Mexico, any labor action against Capita Mexico, Capita US shall ensure that Capita Mexico will respond to such labor action, subject however to Sections 16(a) and (b) above.
(d) Certain Definitions. As used herein:
“Client Materials” means, collectively, all Content and all other information in any form or media, including documents, data, know-how, ideas, specifications, software code, and other materials provided to the Capita Group or Capita Personnel by or on behalf of Client, whether or not the same: (i) are owned by Client, a third party, or in the public domain; or (ii) qualify for or are protected by any Intellectual Property Rights.
“Content” means any data, information, audio, visual, and audiovisual content, including illustrations, graphics, pictures, images, music, sound effects, lyrics, narration, text, film, symbols, video, animation, characters, and interface layouts and designs, whether or not the same qualify for or are protected by any Intellectual Property Rights.
17. Force Majeure.
No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Client to make payments to Capita US hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemic, pandemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within five (5) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Capita US. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.
19. Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Capita Personnel are not, and shall not be deemed to be, employees of Client, but instead are solely employees of the member of the Capita Group who hires such Capita Personnel.
20. No Third-Party Beneficiaries.
Except for Capita Mexico, who is an express third-party beneficiary to this Agreement, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
21. Governing Law.
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.
22. Submission to Jurisdiction.
Subject to Section 23(a), any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the City of San Diego and County of San Diego, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
23. Dispute Resolution.
(a) PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES CLIENT TO ARBITRATE CERTAIN DISPUTES WITH CAPITA US AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. This Section 23 shall survive the expiration or termination of this Agreement.
(i) The parties intend to address Client’s concerns without resorting to a formal legal case. Before filing a formal legal claim against Capita US, please contact Capita US at the address set forth in the Order Confirmation, Attn: Adrian J. Romero and Capita US will attempt to resolve the dispute and address Client’s concerns. If a dispute is not resolved within fifteen (15) days after submission, Capita US or Client may bring a formal proceeding as set forth in this Section 23.
(ii) Any dispute, controversy, or claim arising out of or relating to the Services or this Agreement, or the breach thereof, shall be exclusively settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof; provided, however, that neither Client nor Capita US are required to arbitrate any dispute in which either party seeks equitable or injunctive relief for the alleged unlawful use of the other party’s Intellectual Property Rights, or Confidential Information.
(iii) Client and Capita US agree that arbitration will occur exclusively in San Diego County, California, and that arbitration will be conducted confidentially by a single arbitrator.
(iv) If for any reason this agreement to arbitrate does not apply to the dispute, the parties agree that any judicial proceeding, including any appeal of an arbitration award, will be brought exclusively in the federal or state courts located in San Diego County, State of California. Each party consents to exclusive venue and personal jurisdiction in San Diego County, State of California, and each party agrees to waive its right to a jury trial.
(v) This Agreement and the resolution of any disputes shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles.
(vi) WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, CLIENT HEREBY WAIVES ANY RIGHT TO COMMENCE A CLASS ACTION, CLASS ARBITRATION, OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.
24. Waiver of Jury Trial.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by email (with confirmation of receipt). Notices may also be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid), provided that such Notices are also delivered via email. Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section. Either party may change its notice address by providing notice to the other party pursuant to this Section.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including the following provisions: Section 6(d), Section 7(c), Section 7(f), Sections 8-13 inclusive, Section 16, and Sections 20-30 inclusive.
28. Waiver; Amendment and Modification.
No waiver by Capita US or Client of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by the party to be charged. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
29. Interpretation; Language.
The term “including” shall mean, “including, without limitation.” Headings and titles shall not be used to interpret this Agreement but are only for convenience. The parties to this Agreement have had the opportunity to obtain counsel of their choice in the review, negotiation, and documentation of this Agreement, accordingly, this Agreement shall not be interpreted against one or the other party as the drafter of this Agreement. U.S. English shall be the only language for the interpretation and enforcement of this Agreement.
30. No Exclusivity.
This Agreement does not create an exclusive relationship between Capita US and Client. Any member of the Capita Group may provide similar services to other clients and Client may obtain similar services from other providers.
This Agreement may be executed in any number of counterparts, but all counterparts hereof shall together constitute but one agreement. Acceptance of this Agreement, including any Order Confirmation, may be made or evidenced by (i) a manually signed copy of this Agreement delivered to the other party by facsimile, email, or other means of electronic transmission; or (ii) by DocuSign or similar, and is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Doing Business in Mexico
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