TERMS & CONDITIONS FOR SALESFORCE.COM IMPLEMENTATION & CUSTOMIZATION SERVICES IN ACCORDANCE WITH ANY SOW ISSUED BY BRIDGE THE GAP SOLUTIONS CORPORATION, a New York Corporation with offices at 34-18 Northern Blvd, Long Island City, NY 11101 (“BTG Solutions”)
IN ACCORDANCE WITH ANY SOW ISSUED, BTG Solutions is retained to provide services to assist the Customer in the implementation and utilization of certain computer software programs in connection with the Customer’s CRM/Automation implementation initiatives upon the terms and conditions set forth in this document.
The execution of any SOW with BTG constitutes an Agreement and is referred to herein as “the Agreement”
a) It is understood and agreed that BTG Solutions’s services (the “Services”) means those services to be provided by BTG Solutions pursuant to any Statements of Work issued in accordance with this Agreement (an “SOW”). Each SOW shall specifically reference this Agreement and shall specify the details of the particular Services to be performed, the compensation associated with such Services, any project assumption(s), any special project term(s), and such other matters, terms and conditions as may be agreed to by the parties. Only upon the mutual execution of this Agreement will the Customer be entitled to enter into or otherwise be issued an SOW.
b) In the event of any conflict between the terms of this Agreement and the terms of any particular SOW, the terms of this Agreement shall prevail to the extent not otherwise expressly supreceded by the terms of the SOW, in which case such express terms of the SOW shall prevail.
c) BTG Solutions will provide to the Customer the scope of “Services” as will be outlined in the SOW, and are defined more particularly therein as “Project Objectives.” To the extent the Services may include advice and recommendations, the implementation of such advice and services shall be, at the sole discretion of BTG Solutions, subject to a “Change Request” or, as the case may be, a separate SOW.
d) BTG Solutions shall have the sole discretion to select from its pool of personnel, the person or persons primarily responsible for providing the Services to You, including, at BTG Solutions’ sole discretion, engaging subcontractors to carry out such Services (the “BTG Resources”). At all times, BTG Solutions shall be deemed the sole and exclusive employer or principal, as the case may be, of the BTG Resources.
e) BTG Solutions, within its reasonable control, agrees to provide the Customer with 5(5) days prior written notice before replacing any BTG Resources providing Services to You pursuant to any individual SOW. In the event a BTG Resource is removed from providing the Services to You under a SOW, BTG Solutions shall replace such BTG Resource with an individual that possess qualifications and experience equal to or greater than the departing BTG Resource.
f) the Customer reserves the right to reasonably request the replacement of any BTG Resource, provided: (i) such replacement would not violate any applicable law, rule or regulation, or is not otherwise made for any illegal or discriminatory purpose; and, (ii) [Customer Short name] can reasonably establish that such BTG Resource is is not performing to the standards reasonably expected of professional consultants. In such event, BTG Solutions will use its best, commercially reasonable efforts to timely replace such BTG Resource or otherwise cause it to improve its standards and performance to what is reasonably expected by the Customer.
g) BTG Solutions will be solely responsible for the conduct of its respective employees and its subcontractors in their performance of the Services, including compliance with the Customer’s reasonable policies provided that BTG Solutions has been made aware of such policies, in writing, reasonably prior to the applicability of such policies to BTG Solutions. In the event BTG Solutions is made aware of the applicability of any such policy or policies after entering into any particular SOW with the Customer which would materially increase BTG Solutions’ anticipated timing and cost of providing Services under the SOW, BTG Solutions shall be entitled to a Change Order to the SOW initiated by BTG Solutions, pursuant to Paragraph 20, in order to accommodate such increased cost/timing.
h) BTG Solutions Personnel provided to [Customer] under this Agreement in the United States shall have valid and legal U.S. residency and work authorization. No BTG Solutions employees or Personnel shall be considered an employee, agent or representative of the Customer.
i) BTG Solutions and the Customer expressly acknowledge and agree that the SOWs are based on understandings and expectations that apply at the time such SOWs are executed and that the specific start and stop dates contained in the SOWs are not firm performance dates unless expressly provided for otherwise.
2. Payment of Invoices.
a) Payment pursuant to BTG Solutions’s invoices, issued under and pursuant to any SOW issued to You under this Agreement, shall be made within ten (10) days from Your receipt thereof. Invoices upon which payment is not received within thirty (30) days of the invoice date shall accrue a late charge of the lesser of (i) 11/2% per month or (ii) the highest rate allowable by law, in each case compounded monthly to the extent allowable by law. Without limiting its rights or remedies, BTG Solutions shall have the right to halt or terminate the Services entirely if payment is not received within ten (10) days of the invoice date. the Customer shall be responsible for all sales/use taxes imposed on the Services provided under this Agreement and any SOW in addition to all fees and compensation payable to BTG Solutions under any SOW, but excluding BTG Solutions’s income taxes.
b) the Customer acknowledges that temporary living reimbursements to BTG Solutions’s personnel may be deemed compensatory under federal, state, and local tax laws if such personnel’s assignment in a particular location will exceed or has exceeded one year. The parties shall cooperate in good faith to limit the duration of a person’s assignment in a particular location to less than one year. If the Customer’s requirements are such that it becomes necessary for a person’s services in a particular location to continue for a year or more and, as a result, such person’s living expenses are deemed compensatory for tax purposes, then the Customer shall pay BTG Solutions the amount of additional compensation provided to BTG Solutions’s personnel to compensate for taxes imposed therefore as reflected on a corresponding invoice.
3. Duration and Termination.
a) This Agreement shall commence on the Agreement date and shall continue until all Statements of Work hereto are completed, or until this Agreement is terminated in accordance with its terms.
b) Termination for Convenience. This Agreement or any SOW may be terminated by the Customer upon thirty (30) calendar days advance written notice to BTG Solutions. On its receipt of a notice of termination, BTG Solutions shall no longer be obligated to perform any Services under this Agreement. Provided payment is made to BTG Solutions for all of its Services performed or provided to the Customer through the date of its receipt of such notice of termination, BTG shall turn over to the Customer all completed Deliverables or Deliverables in progress to the Customer in its “as-is” condition (with known issues as the case may be), and without assurance as to quality, usability, suitability, or otherwise. Upon Termination for convenience, this Agreement shall be of no force or effect as between the parties other than for the Customer’s right to the existing, As Is Deliverables as provided for under this sub-paragraph (b).
e) the Customer shall pay for all contracted amounts for Services completed through the expiration, or any early termination date, of any SOW, that conform, in all material respects, to the requirements of such SOW and the terms of Paragraph 5.
a) For purposes of this Agreement, the following terms are defined as follows: (i) “Technology” means works of authorship, materials, information and other intellectual property; (ii) “BTG Solutions Technology” means all Technology created prior to or independently from the Deliverables created as part of the Services, and/or technology created by BTG Solutions or its subcontractors as a tool for their use in performing the Services, plus any modifications or enhancements thereto and derivative works based thereon; and (iii) “Deliverables” means all tangible work-product Technology that BTG Solutions or its subcontractors create for and deliver to the Customer as a result of the Services performed under a SOW, which may include, as specified in the applicable SOW, reports, draft documents, data, interim findings, drawings, schematics, training, meeting presentations, final drawings and reports.
b) Provided complete payment for the Services provided by BTG Solutions is made in accordance with the applicable SOW, the Customer shall be deemed the owner of such Deliverables, except to the extent it includes any BTG Solutions Technology. Furthermore, to the extent the Deliverables consist in whole or in part of any BTG Technology, the the Customer shall be deemed a licensee of such BTG Technology, and its use thereof shall be strictly limited the Customer’s internal business purposes, and for no other purpose (the “Customer License Obligations”). Any distribution or use of the BTG Technology beyond the the Customer’s internal business purposes shall be unlawful and unauthorized under this Agreement and the license hereby granted and a breach of the Customer License Obligations. Except for the foregoing license grant, BTG Solutions or its licensors retain all rights in and to all BTG Solutions Technology.
c) To the extent any BTG Solutions Technology provided to the Customer hereunder is a product (to the extent it constitutes merchandise within the meaning of section 471 of the Internal Revenue Code), such BTG Solutions Technology is licensed to the Customer by BTG Solutions as agent for BTG Solutions Product Services on the terms and conditions herein. The assignment and license grant in Paragraph 4(b) do not apply to any Technology (including any modifications or enhancements thereto or derivative works based thereon) that is subject to a separate license agreement between the Customer and a third party, including, without limitation, BTG Solutions Corporation
d) In the event the Customer uses, distributes, discloses or otherwise operates any BTG Technology other than for the Customer’s internal business purposes, the Customer expressly consents and agrees that BTG Solutions shall have the right to seek equitable relief to prohibit or otherwise enjoin such unlawful activities, together with actual damages arising from the wrongful use of the BTG Technology as provided for herein.
5. Limitation on Warranties,
THIS IS AN AGREEMENT FOR SERVICES. BTG SOLUTIONS WARRANTS THAT IT SHALL PERFORM THE SERVICES IN GOOD FAITH AND IN A PROFESSIONAL MANNER. BTG SOLUTIONS DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. the Customer’S EXCLUSIVE REMEDY FOR ANY BREACH OF THIS WARRANTY SHALL BE FOR BTG SOLUTIONS, UPON RECEIPT OF WRITTEN NOTICE, TO USE DILIGENT EFFORTS TO CURE SUCH BREACH, OR, FAILING ANY SUCH CURE IN A REASONABLE PERIOD OF TIME, THE RETURN OF PROFESSIONAL FEES PAID TO BTG SOLUTIONS HEREUNDER WITH RESPECT TO THE SERVICES GIVING RISE TO SUCH BREACH.
6. Limitation on Damages and Indemnification.
a) Each party agrees that the other party, its affiliates, subcontractors, and their respective personnel shall not be liable for any claims, liabilities, or expenses relating to this Agreement or any SOW (“Claims”) for an aggregate amount in excess of (i) in the case of BTG Solutions, the fees paid by the Customer to BTG Solutions pursuant to the applicable SOW to this Agreement to which such Claims relate, or (ii) in the case of the Customer, the fees paid and payable by the Customer to BTG Solutions pursuant to the applicable SOW to this Agreement to which such Claims relate, except to the extent finally judicially determined to have resulted primarily from the Gross negligence (defined below), bad faith or intentional misconduct of the other party, its subcontractors or their respective personnel. In no event shall either party, its affiliates, subcontractors, or their respective personnel be liable for any loss of use, data, goodwill, revenues or profits (whether or not deemed to constitute a direct Claim), or any consequential, special, indirect, incidental, punitive or exemplary loss, damage, or expense (including, without limitation, lost profits and opportunity costs), relating to this Agreement or any SOW. The provisions of this Paragraph 6(a) shall not apply to any Claim for which one party has an obligation to indemnify the other or to any Claim for breach of Paragraph 4 or 11. In circumstances where all or any portion of the provisions of this Paragraph 6 or Paragraph 11(b) are finally judicially determined to be unavailable, the aggregate liability of each party, its affiliates, subcontractors, and their respective personnel for any Claim shall not exceed an amount which is proportional to the relative fault that their conduct bears to all other conduct giving rise to such Claim. As used in this paragraph above, the term “Gross Negligence” shall mean, “A want of even scant care or an extreme departure from the ordinary standard of conduct.”
b) BTG Solutions shall indemnify, defend and hold harmless the Customer, its subcontractors and their respective personnel from and against any and all Claims attributable to claims of third parties solely for bodily injury, death or damage to real or tangible personal property, to the extent directly and proximately caused by the negligence or intentional misconduct of BTG Solutions while engaged in the performance of the Services; provided, however, that if there also is fault on the part of any entity or individual indemnified hereunder or any entity or individual acting on the Customer’s behalf, the foregoing indemnification shall be on a comparative fault basis.
c) the Customer shall indemnify, defend and hold harmless BTG Solutions, its subcontractors and their respective personnel from and against any and all Claims attributable to claims of third 5 parties solely for bodily injury, death or damage to real or tangible personal property to the extent directly and proximately caused by the negligence or intentional misconduct of the Customer while BTG Solutions is engaged in the performance of the Services; provided, however, that if there also is fault on the part of any entity or individual indemnified hereunder or any entity or individual acting on BTG Solutions’ or any subcontractor’s behalf, the foregoing indemnification shall be on a comparative fault basis.
d) BTG Solutions agrees to indemnify, defend and hold harmless the Customer, its officers and employees from and against any and all Claims attributable to claims of third parties for infringement by a Deliverable of any U.S. patent known to BTG Solutions or copyright or any unauthorized use of any trade secret, except to the extent that such infringement or unauthorized use arises from, or could have been avoided except for (i) the indemnified party’s modification of the Deliverable or use thereof in a manner not contemplated by the applicable SOW, (ii) the failure of the indemnified party to use any corrections or modifications made available by BTG Solutions, (iii) information, materials, instructions or specifications provided by or on behalf of the indemnified party, or (iv) the use of the Deliverable in combination with any product or data not provided by BTG Solutions whether or not with BTG Solutions’ consent. If the Customer’s use of any such Deliverable, or any portion thereof, is or is likely to be enjoined by order of a court of competent jurisdiction as such an infringement or unauthorized use, BTG Solutions, at its option and expense, shall have the right to (x) procure for the Customer the continued use of such Deliverable, (y) replace such Deliverable with a non-infringing Deliverable, or (z) modify such Deliverable so it becomes non-infringing; provided that, if (y) or (z) is the option chosen by BTG Solutions, the replacement or modified Deliverable is capable of performing substantially the same function. The foregoing provisions of this paragraph constitute the sole and exclusive remedy of the indemnified parties, and the sole and exclusive obligation of BTG Solutions, relating to a claim that any of BTG Solutions’ Deliverables infringes any patent, copyright or other intellectual property right of a third party.
e) As a condition to the foregoing indemnity obligations, the indemnified party shall provide the indemnifying party with prompt notice of any Claim for which indemnification shall be sought hereunder and shall cooperate in all reasonable respects with the indemnifying party in connection with any such Claim. The indemnifying party shall be entitled to control the handling of any such Claim and to defend or settle any such Claim, in its sole discretion, with counsel of its own choosing.
f) Nothing contained in this Agreement is intended to confer upon any party (other than the signatory parties hereto) any rights, benefits, or remedies of any kind or character whatsoever, whether in contract, statute, tort (such as negligence), or otherwise.
7. the Customer Responsibilities.
the Customer shall cooperate with BTG Solutions hereunder, including, without limitation, (I) providing BTG Solutions with reasonable facilities and timely access to data, information and personnel of the Customer; (ii) providing experienced and qualified personnel having appropriate skills to perform their assigned tasks and duties in a competent and timely fashion; (iii) providing a stable, fully functional system infrastructure environment which will support the Services and allow BTG Solutions and the Customer to work productively; and (iv) promptly notifying BTG Solutions of any issues, concerns or disputes with respect to the Services. the Customer shall be responsible for the performance of its personnel and agents and for the accuracy and completeness of data and information provided to BTG Solutions for purposes of the performance of the Services. the Customer acknowledges and agrees that BTG Solutions’s performance is dependent upon the timely and effective satisfaction of the Customer’s responsibilities hereunder and timely decisions and approvals of the Customer in connection with the Services. BTG Solutions shall be entitled to rely on all decisions and approvals of the Customer or their designee. the Customer shall be solely responsible for, among other things: (i) making all management decisions and performing all management functions; (ii) designating a competent management member to oversee the Services; (iii) evaluating the adequacy and results of the Services; and (iv) establishing and maintaining internal controls, including, without limitation, monitoring ongoing activities.
8. Force Majeure.
Neither party shall be liable for any delays or non-performance directly or indirectly resulting from circumstances or causes beyond Its reasonable control, including, without limitation, acts or omissions or the failure to cooperate by the other party (including, without limitation, entities or individuals under the other party’s control, or any of their respective officers, directors, employees, other personnel and agents), acts or omissions or the failure to cooperate by any third party, fire, epidemic or other casualty, act of God, strike or labor dispute, war or other violence, or any law, order or requirement of any governmental agency or authority.
9. Limitation on Actions.
The parties mutually consent and agree that, notwithstanding any applicable statutory or equitable limitations periods that may be longer, and subject to the provisions of Section “22” below, each [party shall be barred from commencing any action or proceeding to enforce the terms of this Agreement on or after a date that is one year following the date on which any such claim or cause of action therefore arose. Nothing herein is intended to lengthen any applicable limitations period that may exist or otherwise apply.
10. Independent Contractor.
It is understood and agreed that each party is an independent contractor and that neither party is, nor shall be considered to be, the other’s agent, distributor, partner, fiduciary, joint venturer, co-owner or representative. Neither party shall act or represent itself, directly or by implication, in any such capacity or in any manner assume or create any obligation on behalf of, or in the name of, each other.
11. Confidentiality, Personal Information and Use.
a) To the extent that, in connection with this Agreement, either party (each, the “receiving party”) comes into possession of any trade secrets or other proprietary or confidential information of the other (the “disclosing party”), it will not disclose such information to any third party without the disclosing party’s consent. The disclosing party hereby consents to the receiving party disclosing such information (i) to any subcontractors of BTG Solutions, whether located within or outside of the United States, that are providing services in connection with this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Paragraph 11(a), (ii) as may be required by law, regulation, judicial or administrative process, or in accordance with applicable professional standards or rules, or in connection with litigation pertaining hereto, or (iii) to the extent such information (A) shall have otherwise become publicly available (including, without limitation, any information filed with any governmental agency and available to the public) other than as the result of a disclosure in breach hereof, (B) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party which the receiving party believes is not prohibited from disclosing such information by obligation to the disclosing party, (C) is known by the receiving party prior to its receipt from the disclosing party without any obligation of confidentiality with respect thereto, or (D) is developed by the receiving party independently of any disclosures made by the disclosing party to the receiving party of such information. In satisfying its obligations under this Paragraph 11(a), each party shall maintain the other’s trade secrets and proprietary or confidential information in confidence using at least the same degree of care as it employs in maintaining in confidence its own trade secrets and proprietary or confidential information, but in no event less than a reasonable degree of care. Nothing in this Paragraph 7 11(a) shall alter the Customer’s obligations under Paragraph 11(b). Notwithstanding anything to the contrary herein, the Customer acknowledges that BTG Solutions, in connection with performing the Services, may develop or acquire experience, skills, knowledge and ideas that are retained in the unaided memory of its personnel. the Customer acknowledges and agrees that BTG Solutions may use and disclose such experience, skills, knowledge and ideas.
b) the Customer agrees that neither the Services nor any Deliverables are intended for the express or implied benefit of any person or entity other than the Customer. the Customer further agrees that the Services and Deliverables shall not be disclosed, in whole or in part, to any person or entity other than the Customer and other contractors of the Customer, to whom the Customer may disclose the Deliverables solely for the purpose of providing services to the Customer, provided that such other contractors shall not disclose the Deliverables to any person or entity.
c) BTG Solutions acknowledges that some of the material and information that may come into its possession of knowledge in connection with the Agreement or its performance may consist of information that is exempt from disclosure to the public or unauthorized persons under city, state or Federal statues (“Personal Information”). Personal Information includes, but is not limited to, names addressed, Social Security numbers, e-mail addresses, telephone numbers, financial profiles, credit card information, driver’s license numbers, health information, law enforcement records, birthdates, or other information indefinable to an individual that relates to any of these types of information. In each instance, however, to be qualified as “Personal Information” the information must be capable of individually identifying a natural person. BTG Solutions agrees to hold Personal Information in confidence and not to make use of Personal Information for any purpose other than the performance of this Agreement, to release it only to authorized personnel or subcontractors who require such information for the purposes of carrying out this Agreement, and not to release, divulge, publish, transfer, sell, disclose, or otherwise make the information known to any other party without the Customer’s ‘s written consent or as provided by applicable law, rule, or regulation.
12. Survival and Interpretation.
All Paragraphs herein relating to payment of invoices, Deliverables, limitation on warranties, limitation on damages and indemnification, limitation on actions, confidentiality, personal information and use, survival and interpretation, assignment and subcontracting, non-exclusivity, non-solicitation, dispute resolution, and governing law shall survive the expiration or termination of this Agreement or any SOW. The provisions of Paragraphs 6, 9, 11(b), 12, 16, 18, and 22 hereof shall apply to the fullest extent of the law, whether in contract, statute, tort, or otherwise, except as may be expressly limited herein.
13. Assignment and Subcontracting.
Except as provided below, neither party may assign, transfer or delegate any of its rights or obligations hereunder (including, without limitation, interests or Claims) without the prior written consent of the other party. the Customer hereby consents to BTG Solutions assigning or subcontracting any of BTG Solutions’s rights and obligations hereunder to (i) any affiliate or related entity, whether located within or outside the United States, or (ii) any entity that acquires all or a substantial part of the assets or business of BTG Solutions. Services performed hereunder by BTG Solutions’s subcontractors shall be invoiced as professional fees on the same basis as Services performed by BTG Solutions’s personnel, unless otherwise agreed.
The parties acknowledge that BTG Solutions shall have the right to (i) provide consulting or other services of any kind or nature whatsoever to any person or entity as BTG Solutions in its sole discretion deems appropriate, or (ii) use any works of authorship or other intellectual property that may be included in the Deliverables, to develop for itself, or for others, materials or processes that may be similar to those produced as a result of the Services.
During the term of a SOW to this Agreement and for a period of one (1) year thereafter, each party agrees that its personnel (in their capacity as such) who had direct and substantive contact in the course of such SOW to this Agreement with personnel of the other party shall not, without the other party’s consent, directly employ, solicit, engage or retain the services of such personnel of the other party. In the event a party breaches this provision, the breaching party shall be liable to the aggrieved party for an amount equal to thirty percent (30%) of the annual base compensation of the relevant personnel in his/her new position. Although such payment shall be the aggrieved party’s exclusive means of monetary recovery from the breaching party for breach of this provision, the aggrieved party shall be entitled to seek injunctive or other equitable relief. This provision shall not restrict the right of either party to solicit or recruit generally in the media.
16. THIS PARAGRAPH INTENTIONALLY LEFT BLANK
17. Entire Agreement, Amendment and Notices.
These terms of this Agreement, and any SOW, including exhibits, constitute the entire agreement between the parties with respect to this Agreement, supersede all other oral and written representations, understandings or agreements relating to this Agreement, and may not be amended except by written agreement signed by the parties. All notices hereunder shall be (i) in writing, (ii) delivered to the representatives of the parties at the addresses set forth in the Agreement, unless changed by either party by notice to the other party, and (iii) effective upon receipt.
18. Governing Law; Jurisdiction and Venue; and Severability. These Agreement terms, the SOW including exhibits, and all matters relating to this Agreement, shall be governed by, and construed in accordance with, the laws of the State of New York (without giving effect to the choice of law principles thereof). Any action based on or arising out of this Agreement or the Services shall be brought and maintained exclusively in any court of the State of New York or any federal court of the United States, in each case located in Queens County, State of New York. If any provision of this Agreement or of the SOW is found by a court of competent jurisdiction to be unenforceable, such provision shall not affect the other provisions, but such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent of the parties set forth herein.
19. Approval of Deliverables.
a) the Customer shall approve each Deliverable that conforms in all material respects with the specifications set forth in the applicable SOW for each such Deliverable or as otherwise agreed by the parties in writing (“Specifications”). Within two (2) days (or such other period agreed upon in the applicable SOW) from its receipt of a Deliverable, the Customer shall provide BTG Solutions with (i) written approval of such Deliverable or (ii) a written statement which identifies in reasonable detail, with references to the applicable Specifications, all of the deficiencies preventing approval (the “Deficiencies”).
b) BTG Solutions shall have thirty (30) days (or such other period agreed upon in the applicable SOW) from the date it receives the notice of Deficiencies to complete corrective actions in order for such Deliverable to conform in all material respects to the applicable Specifications. the Customer shall complete its review of the corrected Deliverable and notify BTG Solutions in writing of acceptance or rejection in accordance with the foregoing provisions of this Paragraph. Said thirty (30) day period shall be extended to the extent corrective actions require more time under commercially reasonable standards, and provided BTG Solutions continues to implement such cure(s).
c) Notwithstanding the foregoing provisions of this Paragraph, approval of a Deliverable shall be deemed given by the Customer if the Customer has not delivered to BTG Solutions a notice of Deficiencies for such Deliverable prior to the expiration of any period for the Customer review thereof as set forth in this Paragraph, or if the Customer uses the Deliverable in production.
d) To the extent that any Deliverable has been approved by the Customer at any stage of BTG Solutions’ performance under a SOW, BTG Solutions shall be entitled to rely on such approval for purposes of all subsequent stages of BTG Solutions’ performance under such SOW. the Customer agrees that, in the event an approved Deliverable differs from the Specifications for such Deliverable, the Specifications shall be deemed modified to conform with such approved Deliverable.
e) If BTG Solutions is unable to correct the Deficiencies in a Deliverable within the period of time set forth above, the Customer shall be entitled, at its option, to a credit of remaining professional fees set to be paid to BTG Solutions hereunder with respect to the Services giving rise to such Deliverable and this shall be the Customer’s sole and exclusive remedy, and BTG Solutions’ sole and exclusive obligation, with respect to any claim that the Deliverables do not conform to the requirements of these terms or a SOW.
20. Change Order Procedure.
a) For purposes of this Agreement and any SOW, a “Change Order” shall mean an agreement between the parties, to modify, reduce, or expand the scope of the Service and/or to modify, reduce, or increase the fees and/or expenses set forth in a SOW pursuant to the terms of this Paragraph 20. For the avoidance of doubt, a Change Order shall not, nor is it intended to, amend the terms of this Agreement. Either party may request a Change Order by providing the other party with a documented change order request in the form provided in, or similar to, Exhibit A to this Agreement. A party having received a change order request shall consider the terms of the request in good faith and within a reasonable timeframe (typically within ten (10) business days), but shall be under no obligation to agree to, or make a counter proposal to, such request. No Change Order shall be effective until and unless the corresponding change order request document, in which the Change Order is described, is executed by both parties.
b) the Customer acknowledges that the occurrence of certain circumstances, or impending circumstances, that result in, or will result in, an material increase in the resources, manpower, expenditures, or time devoted by BTG Solutions to the performance of Services under a SOW (each an “Unexpected Event”), may result in the initiation of a change order request by BTG Solutions. The parties agree that if an Unexpected Event results from any of the below-mentioned circumstances, and the parties cannot within ten (10) business days agree to the terms of a change order request initiated by BTG Solutions corresponding to any such circumstances, then BTG Solutions shall have the right to terminate the affected SOW for its convenience upon written notice to the Customer. The aforementioned circumstances include:
• Except to the extent resulting from a force majeure event pursuant to Paragraph 8, the Customer’s or City’s failure or refusal to timely perform any of its obligations under the terms of Paragraph 7 or any other such obligations set forth in the applicable SOW, provided that such failure or refusal is not cured within 30 days of the Customer’s receipt of written notice from BTG Solutions describing such failure or refusal; or 10
• The non-occurrence of any material event that was assumed to occur, or the occurrence of any material event that was assumed not to occur, in accordance with the terms set forth in the “Assumptions” section or otherwise in the applicable SOW.
21. THIS SECTION INTENTIONALLY LEFT BLANK
22. Dispute Resolution.
Notwthstanding anything in this Agreement to the contrary, the parties expressly consent, warrant and agree that each party shall be unconditionally barred from commencing any judicial action or proceeding to enforce any term of this Agreement or any SOW issued hereunder (a “Dispute”) unless and until the Dispute Resolution procedures set froth in this Section “22” have been exhausted.
a) Intent. The parties shall endeavor to resolve their Disputes informally to the extent reasonably possible. The parties shall negotiate all disputed matters of separate and joint concern in good faith, with the intention of resolving such issues between them in a mutually satisfactory manner. Nothing in this Paragraph 22 shall preclude the parties from exercising their termination rights granted under law or this Agreement. All written notifications issued between the parties concerning any Disputes shall be sent in accordance with Paragraph 23.
b) Informal Resolution. If a Dispute occurs then the project managers and procurement representatives of both parties shall confer within three (3) business days after a written request by either party to resolve the dispute. If the Dispute remains unresolved after three (3) business days of the initial conference, then the party initiating the Dispute complaint shall notify the other party of the unresolved Dispute. the Customer and BTG Solutions shall each designate an individual representative to informally resolve the Dispute through negotiations. Additional individuals may also participate in the negotiations as agreed to by the parties. If these individual representatives cannot resolve the Dispute within five (5) business days (or any extension period as agreed to by the parties in writing) of the unresolved Dispute notice, the issue shall proceed pursuant to the process described in the below subparagraph 22(c).
c) Formal Resolution. A fact-finding and dispute resolution panel (“Panel”) shall be convened if the process described in Agreement Subsection 22 (b) fails to result in resolution of the disputed issue(s) and any of the designated individuals of the Customer, and the BTG Solutions notifies the others in writing of a request for formal dispute resolution.
d) Composition of the Panel. The Panel shall consist of three persons. The Panel shall be convened ad hoc and there shall be no standing or ex officio members, the Customer and (shall jointly appoint) and BTG Solutions shall appoint, within five (5) business days of receipt by a party to initiate formal resolution, one person to serve on the Panel. The appointees of the Customer/City and BTG Solutions shall jointly, within five (5) business days, select a third person who possesses legal and/or technical skills and experience relevant to the dispute. If the appointed Panel members fail to agree upon a mutually acceptable third Panel member in the time provided herein, the parties agree that the third Panel member shall be selected from the American Arbitration Association at the sole discretion of the American Arbitration Association, New York Regional Administrator.
e) Description of the Dispute. The designated individuals of the Customer and BTG Solutions shall provide to the Panel a written description of the dispute, including the particular issues on which the parties seek the Panel’s recommendations.
f) Findings and Recommendations Report. The Panel shall, within thirty (30) calendar days after appointment of the Panel, submit to the Customer, and BTG Solutions a written report that includes the Panel’s findings of fact and recommendations for resolution.
g) Dispute Resolution Mandatory. The dispute resolution process provided for in the foregoing subparagraphs of this Section 22 is a prerequisite to the exercise of the juridical remedies available to the parties in the following subparagraph (h), except in cases where a party is seeking injunctive or other equitable relief. All aspects of the dispute resolution proceedings set forth in the foregoing subparagraphs of this Paragraph 22 shall be treated as confidential and the content of all discussions occurring in the course of such proceedings, and any materials specifically developed in anticipation of or as a result of such proceedings (including, without limitation, the report of the Panel), to advance the purpose of such proceedings, and any materials developed during such proceedings, shall be treated as confidential, not to be discussed with or disclosed to any third parties, and shall not be admissible in any judicial proceeding; provided, however, that any written settlement agreement which may be entered into by the parties as a result of such proceedings, shall be admissible by either party, in each case, to enforce the terms of such agreement.
h) If any Dispute is not resolved pursuant to the preceding subparagraphs of this Paragraph 22, the parties hereby agree to submit any such Disputes to a trial by general reference. The parties agree that a former judicial officer of the State of New York shall serve as the referee pursuant to the provisions of NYS Rule of Court XXX. If the parties are unable to agree on a referee within thirty (30) days of the filing of a Dispute, each party shall submit to the Superior Court in which such Dispute is pending up to three nominees for appointment as a referee, and the Court shall make the appointment from the nominees in accordance with NYS Law and subject to NYS Law. The referee shall issue a written statement of decision that shall be reported to the Superior Court in accordance with NYS Law and mailed promptly to the parties. The provisions of this subparagraph shall be specifically enforceable by the parties.
Any notice or instrument required or permitted to be given under this Agreement shall be effective, and deemed received upon personal delivery thereof if transmitted by national overnight carrier, addressed to each party as follows: Bridge the Gap Solutions Corporations, ATTN Procurement Manager 34-18 Northern Blvd. Long Island City NY 11101 USA and, if to the Customer, ___________________________, _____________________________, ________
24. Access to the Customer’s and City Facilities, Electronic Data and Computer Systems. the Customer represents, warrants and agrees that as a condition precedent to BTG Solution’s obligation to perform Services hereunder,
a) BTG Solutions, its personnel, agents and subcontractors will be granted access to the Customer facilities only in compliance with the Customer’s standard administrative and security requirements, including processes for registering and wearing identification badges, and only for the purpose of carrying out BTG Solutions’s obligations hereunder. Access to such facilities may be restricted to the hours of 8:00 am to 5:00 pm on weekdays. Access to such facilities outside those hours must be approved in advance by the Customer. BTG Solutions shall have no tenancy, or other property or other rights in such facilities.
b) Each of BTG Solutions’ regularly assigned personnel will be issued the Customer’s standard vendor identification badge that must be worn at all times while performing Services at the Customer and City facilities. All other BTG Solutions personnel and representatives requiring access to the Customer’s facilities must register with the main entrance receptionist and will be issued a visitor badge that must be worn while in the facility. the Customer will provide BTG Solutions a virtual private network (“VPN”) that is limited to the computer system(s) requiring remote support, said access to be in accordance with the Customer’s access protocol and security requirements, as follows: (i) BTG Solutions will be granted access into the Customer’s network, but only on a VPN connection; (ii) the Customer will create an account for BTG Solutions on the VPN; (iii) the Customer will restrict BTG Solutions’ access only to those computer systems containing the software required to perform the remote support services; (iv) BTG Solutions shall, while connected to the Customer’s network, limit remote access activity to that required to perform the Services hereunder; (v) The VPN account created for BTG Solutions shall be used solely by BTG Solutions and BTG Solutions’ representatives; (vi) the Customer will neither provide nor allow “split tunneling” while BTG Solutions is using the VPN; (vii) the Customer may monitor BTG Solutions’ activity while accessing the Customer’s computing resources, will report any unacceptable activity to BTG Solutions, and may terminate BTG Solutions’ VPN account for such unacceptable activity if not promptly discontinued; (viii) Should the Customer detect that BTG Solutions or any of BTG Solutions’ representatives have accessed any servers other than those containing the software required to perform remote support, the Customer will terminate the remote modem access immediately and without prior notice; (ix) BTG Solutions’ computer systems that connect to the VPN shall have operating system patches installed that BTG Solutions determines are reasonably necessary to safeguard the integrity of such computer systems and shall be running anti-virus software with virus pattern files that are periodically updated; (x) the Customer will enable account settings that affect the VPN including, but not limited to, limiting the access to a single simultaneous login, requiring a Secureid card for access, and establishing a ninety (90) minute inactivity timeout: and, (xi) BTG Solutions shall be responsible for following industry standard security practices while connected to the Customer’s network via the VPN.