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Last Updated: May 18th, 2020
This Non-Disclosure Agreement (“NDA”) is entered into by and between Sitehands, Inc., a Delaware corporation located at 615 South College St, Suite 700, Charlotte, NC 28202 (“Company”) and the entity executing this NDA (“Provider”). Provider wishes to perform services on Company’s behalf (“Services”) as described in the Provider Services Agreement that Company and Provider may execute (“PSA”) for the benefit of Company’s customers as may be identified in a Statement of Work executed by Company and Provider pursuant to the PSA (each a “Customer”).
This NDA is effective upon the date that Provider accepts this NDA by clicking “I ACCEPT” below (the “Effective Date”). CLICKING THE BOX AT THE END OF THIS NDA INDICATES PROVIDER’S ACCEPTANCE OF THIS NDA, AND THAT PROVIDER AGREES THAT IT HAS READ AND UNDERSTANDS, AND AGREES TO THIS NDA, AND THAT THE PERSON ACCEPTING THIS NDA HAS THE AUTHORITY TO DO SO, EITHER INDIVIDUALLY OR AS AN EMPLOYEE OR AGENT OF PROVIDER. If Provider does not accept this NDA, it must click “I DO NOT ACCEPT” below.
Now therefore, in consideration of the promises and covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
- Definition. As used herein, “Confidential Information” means any and all information provided or made available by Company or by Customer to Provider (including to Provider’s employees, agents and representatives) in written, oral, electronic, visual or any other form, including but not limited to writings, presentations, ideas, media, drawings, works of authorship, know-how, processes, materials, and information that Company and Customer provides regarding third parties. Customer Confidential Information also includes observations made at Customer premises.
- Restrictions. Provider will hold all Confidential Information in strict confidence and will not disclose it to any third party. Provider will use the Confidential Information of Customer for no purpose other than to perform Services for such Customer, and Provider will use the Confidential Information of Company for no purpose other than to perform the PSA. The foregoing are together referred to as the “Purpose”.
- Permitted Disclosures. Provider may disclose Confidential Information if compelled to do so by a court, administrative agency or other tribunal of competent jurisdiction; provided, however, that in such case Provider shall provide prompt written notice to Company in advance of the disclosure so that Company and/or Customer may seek a protective order or other remedy from said court or tribunal and Provider shall reasonably cooperate with Company and/or Customer, as applicable, in such efforts, and shall only disclose that portion of such Confidential Information that it is required to disclose. If Confidential Information is required to be disclosed pursuant to this Section, Provider shall exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Confidential Information.
- Exceptions. Provider shall not be obligated to nondisclosure and nonuse of Confidential Information to the extent the Provider can prove that such information: (a) was in the public domain at the time it was communicated to the Provider; (b) entered the public domain subsequent to the time was communicated to the Provider through no breach of this NDA by the Provider; (c) was in the Provider’s possession free of any obligation of confidence at the time it was communicated to the Provider, as evidenced by Provider’s records kept in the ordinary course; or (d) was rightfully communicated to the Provider by a third party (excluding a Customer) free of any obligation of confidence subsequent to the time it was communicated to the Provider, as evidenced by Provider’s records kept in the ordinary course. The fact that any portion of the Confidential Information may be subject to one of the foregoing exceptions (a) through (d) shall not automatically exclude any combination of Confidential Information from protection under this NDA unless the entirety of such Confidential Information also falls under the same exception(s).
- Return of Information. Unless otherwise permitted by Company, upon termination or expiration of this NDA, or upon Company’s earlier written request, Provider shall promptly return to Company, or, if so requested in writing, destroy and certify the destruction of, all documents and other tangible materials representing Confidential Information and all copies thereof.
- No License. Provider recognizes and agrees that nothing contained in this NDA shall be construed as granting any rights, by license or otherwise, to any Confidential Information, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Provider shall not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information. As between the parties, the Company and the Customer, as applicable, solely and exclusively owns the Confidential Information, and all rights relating to the Confidential Information are reserved and retained by Company and the Customer, as applicable.
- Additional Obligations. Confidential Information shall not be reproduced by Provider in any form except as necessary to perform the PSA and the Services. Provider shall protect the Confidential Information to prevent the unauthorized use, dissemination, or publication thereof, using the same degree of care (but no less than reasonable care), as it uses to protect its own most sensitive proprietary or confidential information. Provider may not disclose Confidential Information to any person or entity except to its employees and agents having a need to know in support of the Purpose and who are contractually obligated to maintain the confidentiality of, and to protect, the Confidential Information under terms no less restrictive as set forth herein. Provider is liable and responsible for such persons’ compliance with the terms of this NDA.
- No Warranties. No warranties of any kind, whether express or implied, are given by Company or Customer with respect to any Confidential Information or any use thereof or reliance thereupon, and all Confidential Information is provided on an “AS IS” basis.
- Term. This NDA shall take effect on the Effective Date and terminate upon the earlier of (a) termination or expiration of the PSA, or (b) Provider’s receipt of written notice from Company terminating this NDA. Provider’s obligations under this NDA with respect to each item of Confidential Information shall survive termination of this NDA.
- Injunctive Relief. Provider acknowledges that its breach of this NDA may cause irreparable damage for which monetary damages may be difficult to ascertain and/or inadequate, and hereby agrees that Company shall be entitled to injunctive relief under this NDA in any court of competent jurisdiction, no matter where located, as well as such further relief as may be granted by such court, and in each case without posting a bond or proving damages.
- Severability. If any provision of this NDA is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity shall not render this NDA unenforceable or invalid as a whole, and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. This NDA constitutes the entire understanding between the parties with respect to its subject matter and shall supersede any other prior arrangements as to the Confidential Information, including any and all other non-disclosure or confidentiality agreements (in any form, whether written or oral) previously entered into or executed between the parties, rendering them null and void.
- Notices. To be effective, any notice or demand under this NDA is required to be in writing and given by priority mail, confirmed email or in-person delivery. Notice shall be effective (1) two days following the date mailed for priority mail, (2) when confirmed by “read receipt” email or (3) if in-person delivery, when delivered as evidenced by a signed receipt acknowledging delivery. Notices to Provider shall be sent to the address and contact person identified in its process of executing the PSA, and notices to Company shall be sent as follows:
615 South College St, Suite 700
Charlotte, NC 28202
Attn: General Counsel 14.1 Governing Law. This NDA and any claim, controversy or dispute between the parties and/or their Affiliates arising out of or relating to this NDA (“Disputes”) will be governed by North Carolina law, excluding: (i) choice of law principles; (ii) the United Nations Convention on Contracts for the International Sale of Goods; and (iii) the Uniform Computer Information Transactions Act (“UCITA”).
14.2 BINDING ARBITRATION AND CLASS ACTION WAIVER. This section applies to any dispute other than actions for equitable relief as described in Section 11. The term “dispute” means any dispute, action, or other controversy between Provider and Company concerning the Services, Deliverables, and any other matter in connection with this NDA, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis.
In the event of a dispute, Provider or Company must give the other a Notice of Dispute, which is a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. The parties will attempt to resolve any Dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. After sixty (60) days, Provider or Company may commence arbitration.
If Provider and Company do not resolve any Dispute by informal negotiation, any other effort to resolve the Dispute will be conducted exclusively by binding arbitration as described in this section. Provider is giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. Instead, all Disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the Federal Arbitration Act. Any court with jurisdiction over the parties may enforce the arbitrator’s award.
Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither Provider nor Company will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
Any arbitration will be conducted in North Carolina, United States, by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules. The arbitrator may award the same damages to Provider individually as a court could. Claims or disputes must be filed within one year. To the extent permitted by law, any claim or Dispute under this NDA must be filed within one year. The one-year period begins when the claim or Notice of Dispute first could be filed. If a claim or dispute isn't filed within one year, it's permanently barred.
If the class action waiver above is found to be illegal or unenforceable as to all or some parts of a dispute, then Section 14.2 won't apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of this Section 14.2 is found to be illegal or unenforceable, that provision will be severed with the remainder of Section 14.2 remaining in full force and effect.
If Provider is not a United States entity and if the foregoing arbitration provisions are unenforceable pursuant to the governing law of Customer’s jurisdiction, then any dispute arising from or in connection this NDA will be finally settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce then in effect, by one arbitrator appointed in accordance with such Rules, and such arbitration shall be the exclusive method to settle any dispute relating to this NDA.
All arbitration awards, as well as any other decision of the arbitrator (including any conservative or interim measures), shall be final, non-appealable, binding and executory. Judgment on the arbitrator’s decision may be entered in, and enforced by, any court having jurisdiction over the party against which an award is entered or over such party’s assets, and the parties hereby irrevocably waive any defense and any objection to the exercise of jurisdiction by such courts, based on international comity, improper venue or forum non conveniens.
- Miscellaneous. Provider shall not assign this NDA without the prior written consent of Company. Any assignment of this NDA or any rights or obligations under this NDA without the express written consent of Company will be invalid. This NDA, together with the PSA, constitutes the entire understanding of the parties with respect to the subject matter of this NDA and will supersede all previous and contemporaneous communications, contracts, agreements, representations or understandings, either oral or written, between the parties relating to that subject matter and will not be contradicted or supplemented by any prior course of dealing between the parties. All provisions on any of Provider’s forms shall be deemed to be rejected and deleted. This NDA may not be amended or modified without the parties’ written agreement. The failure of either party to assert any of its rights under this NDA, including, but not limited to, the right to terminate this NDA in the event of breach or default by the other party, will not be deemed to constitute a waiver by that party of its right to enforce each and every provision of this NDA in accordance with their terms.
[I ACCEPT] [I DO NOT ACCEPT]
PLEASE PRINT THIS NDA FOR YOUR RECORDS
Sitehands, Inc., a Delaware corporation located at 615 South College St, Suite 700, Charlotte, NC 28202 (“Company”) helps customers successfully manage start-to-finish outcomes through technology field services. Company engages a network of professional service providers to help provide these services. If Provider has executed Company’s online Nondisclosure Agreement and has been presented by Sitehands with this Provider Services Agreement (“PSA” or “Agreement”) including Exhibits A and B, then Provider is an authorized Company independent contractor authorized to perform certain services in accordance with the terms of the Nondisclosure Agreement, this Agreement and each Statement of Work (defined below) (“Provider”).
If Provider wishes to perform services pursuant to this Agreement, then:
- Provider must review and accept the Security and Compliance documents, which are made part of this Agreement. These documents can be found at https://sitehands.com/security-and-compliance/
- Provider may execute separate Statements of Work from time to time (each a “Statement of Work” or “SOW”).
CLICKING THE BOX TO ACCEPT THIS AGREEMENT INDICATES PROVIDER’S ACCEPTANCE OF THIS AGREEMENT AND EACH COMPANY ATTACHMENT, AND THAT PROVIDER AGREES THAT IT HAS READ AND UNDERSTANDS, AND AGREES TO THIS AGREEMENT AND EACH COMPANY ATTACHMENT, AND THAT THE PERSON ACCEPTING THIS AGREEMENT AND EACH COMPANY ATTACHMENT HAS THE AUTHORITY TO DO SO, EITHER INDIVIDUALLY OR AS AN EMPLOYEE OR AGENT OF PROVIDER. If Provider does not accept this Agreement and each Company Attachment, it must click “I DO NOT ACCEPT”.
Company may change, modify, add or remove portions of this Agreement and each Company Attachment (each, an “Update”) from time to time without prior notice, and such Updates will be effective upon Provider’s accepting any Work Order or entering into any Statement of Work subsequent to such Update. If Company makes an Update, it will change the "Last Updated" date above. Provider’s accepting a Work Order or entering into a Statement of Work after an Update confirms Provider’s acceptance of the Update. Company encourages Provider to frequently review this Agreement and each Company Attachment (links found above) to ensure it understands the latest terms and conditions associated with its performance of Services. If Provider does not agree to the Update, it should not accept any new Work Order or enter into a new Statement of Work.
PLEASE NOTE THAT THIS AGREEMENT INCLUDES NON-COMPETITION AND NON-SOLICITATION CLAUSES (SECTION 24 A LIMITATION ON COMPANY’S LIABILITY (SECTION 8) AS WELL AS AND INDEMNIFICATION BY PROVIDER (SECTION 7). COMPANY ADVISES PROVIDER TO REVIEW THESE PROVISIONS CAREFULLY BEFORE ACCEPTING THIS AGREEMENT.
“Affiliate” means any entity that controls, is controlled by or is under common control with one of the parties to this Agreement, where “control” or “controlled” means beneficial ownership (direct or indirect) of more than fifty percent (50%) of the subject entity or having the ability to control decisions made by the entity.
“Customer” means the third-party entities to whom Provider shall provide the Services, as directed by Company.
“Deliverable” means any work product listed as a deliverable on the applicable Work Order or Statement of Work and provided by Provider in connection with the Services.
“Emergency On-Demand Services” means where a Customer is experiencing an unplanned interruption to an IT service or reduction in the quality of an IT service to include failure of a configuration item that has not yet affected service.
“Intellectual Property” means patents, trademarks, copyrights, trade secrets and other proprietary rights.
“Project Services” means services to be performed by Provider having a specific scope or work governed by a Statement of Work.
“Provider Intellectual Property” means all patents, copyrights, trademarks, trade secrets and other similar proprietary rights associated with Provider’s products and services.
“Scheduled On-Demand Services” means where a formal request has been submitted to the Sitehands Global Operations Center by a Customer for a scheduled approved task(s) to be completed (installs, moves, adds, changes and disposal) where physical presence is required.
“Services” are as defined above and may include Emergency-on-Demand Services, Business as Usual Services, and Project Services.
“Work Order” means a task or a job made available by Company to Provider describing a specific job, and accepted by Provider pursuant to the SOW corresponding to such job.
- Order and Priority of Documents
- The SOW
- The Agreement
- The Attachments
- Services and Deliverables
During the term of this Agreement, Provider shall perform the Services and provide the Deliverables, all in accordance with this Agreement and each Statement of Work and each Work Order and in accordance with the SLA. Provider shall be responsible for the performance of all its obligations under this Agreement and each Statement of Work and Work Order, including those that it performs through its subcontractors. This Agreement does not guarantee that any Services will be assigned to Provider, nor does it require Provider to accept any request for Services.
- Term and Termination
Provider shall be paid in the currency corresponding to the country in which the Customer is located (as identified in the Work Order or SOW). Provider will only be paid after Provider: (a) has completed all services stated in a Work Order or SOW, (b) has verified, via the Sitehands Platform, that the Services under such Work Order or SOW have been completed, and (c) Company has accepted, via the Sitehands Platform, the Services as complete. Payment shall not constitute acceptance or approval of Services or a waiver by Company of any right. Provider will bill company promptly but in any event within sixty (60) days after company has accepted a deliverable, the expenses were incurrence, or the services were performed. Unless otherwise specified in a Statement of Work, Sitehands will have no obligation to pay any charges or expenses that Provider fails to invoice to Sitehands within ninety (90) days after the expenses were incurred.
Except where Company is required to identify Provider as the entity performing work for Customers, neither Company nor Provider is permitted to use the other party’s name or use any trademark, service mark or trade name of the other, or the Customer, in any media release, public announcement, promotional or marketing materials, customer lists, referral lists or business presentations without the prior written consent from the other party for each such use or release. Consent may be given or withheld in that party’s sole discretion.
- Indemnity by Provider
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, AND EXCEPT FOR CLAIMS OF WILLFUL MISCONDUCT OR FRAUD or damages resulting from gross negligence or intentional misconduct, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT (FOR EXAMPLE, LOST PROFITS OR LOST REVENUE), WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING THE POSSIBILITY OF NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF A PARTY HAS BEEN WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE, AND EVEN IF ANY OF THE LIMITED REMEDIES IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
to the maximum amount permitted under applicable law, and except for claims of willful misconduct or fraud OR WITH RESPECT TO gross negligence or intentional misconduct, IN NO EVENT WILL EITHER PARTY’S aggregate LIABILITY pursuant to or in connection with THIS AGREEMENT EXCEED the FEES PAID OR TO BE PAID UNDER THIS AGREEMENT TO PROVIDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO SUCH DAMAGES. THE LIMITATIONS OF LIABILITY IN THIS SECTION ALSO WILL APPLY TO ANY LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND VENDORS.
Provider represents and warrants to Company as follows: (a) that Provider shall perform the Services in the highest professional, ethical and workmanlike manner, in accordance with the applicable Statement of Work, (b) that the Deliverables shall conform to the applicable specifications set forth in this Agreement and the Statement of Work (“Specifications”) and shall be free of liens and other encumbrances, and (c) that no Provider Intellectual Property shall infringe upon or misappropriate any Intellectual Property of any third party. If Provider’s Services fail to meet the Specifications or the other requirements of this Agreement, Provider shall promptly and at its own expense, (i) promptly re-perform any Services that fail to meet such standards or re-deliver corrected Deliverables, and (ii) reimburse Company for its damages resulting from such failure, including additional legal expense, salvage costs, testing expense and other caused by Provider’s failure to meet the Specifications. These warranties are in addition to warranties and remedies available to Company under applicable laws.
- Ownership and Intellectual Property
Company grants Provider a limited, non-sub-licensable, non-exclusive, non-transferable license to use Company’s platform solely as necessary to provide the Services and solely during the term of the applicable Statement of Work.
To be effective, any notice or demand under this Agreement is required to be in writing and given by priority mail, confirmed email or in-person delivery. Notice shall be effective (1) two days following the date mailed for priority mail, (2) when confirmed by “read receipt” email or (3) if in-person delivery, when delivered as evidenced by a signed receipt acknowledging delivery. Notices to Provider shall be sent to the address and contact person set forth in the Statement of Work, and notices to Company shall be sent as follows:
615 South College St, Suite 700
Charlotte, NC 28202
Attn: General Counsel
Provider shall employ for the Services only persons known to it to be experienced and fully qualified to perform the tasks assigned to them. Provider shall be responsible for all associated salaries, taxes and insurance. At Company's request, Provider shall submit credentials of any of Provider's employees, subcontractors or agents assigned to perform the Services.
All persons performing Services on Company’s site must comply with Company’s, and each Customer’s, security guidelines and any other applicable requirements and if required submit to a background check. Company may reject or have Provider immediately remove any employee, subcontractor or agent who in Company's opinion and sole discretion does not meet Company’s expectations, whereupon Provider shall, at its expense and risk, reject or remove and replace such employee, subcontractor or agent at no cost to Company with a qualified replacement employee/subcontractor/agent. Provider shall exclude from any participation in the performance of the Services any dishonest, dangerous or otherwise unqualified persons.
Company may suspend Provider's performance of the Services, in whole or in part, without cause and for Company's own convenience. Any such suspension will be effective upon delivery of a written "Notice of Suspension" to Provider specifying that portion of the Services suspended and when such suspension is to become effective. After receiving a "Notice of Suspension" and except as otherwise directed by Company, Provider shall stop the Services on the date and to the extent specified therein; place no further orders or subcontracts except as may be necessary for completing the portion of the Services that cannot be suspended; suspend all orders and subcontracts to the extent they relate to the suspended Services; and take such action as may be necessary or as directed by Company to protect and preserve Company’s property or any of the Deliverables in Provider's possession. Within ten (10) calendar days after receiving a "Notice of Suspension", Provider must submit to Company an itemized list of all actions taken or intended to be taken as a result of such suspension. If Company has not terminated or extended the suspension in writing within one hundred eighty (180) calendar days after the date of "Notice of Suspension", such notice shall be deemed a "Notice of Termination for Convenience" as to the suspended Services. Suspension will not affect pricing or the term of this Agreement. In no event will unabsorbed indirect expenses, unabsorbed overhead expenses, or anticipatory profit be reimbursed by Company.
15.1 Governing Law. This Agreement and any claim, controversy or dispute between the parties and/or their Affiliates arising out of or relating to this Agreement (“Disputes”) will be governed by the laws of the state or Country in which Provider is providing Services, subject to any conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (“UCITA”) do not apply to this Agreement.
15.2 DISPUTE RESOLUTION. This section applies to any dispute EXCEPT IT DOES NOT APPLY TO A DISPUTE RELATING TO THE ENFORCEMENT OR VALIDITY OF COMPANY’S INTELLECTUAL PROPERTY. The term “dispute” means any dispute, action, or other controversy between Provider and Company concerning the Services, Deliverables, and any other matter in connection with this Agreement, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. In the event of a dispute, Provider or Company shall give the other a Notice of Dispute, which is a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. The parties will attempt to resolve any Dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. After sixty (60) days, Provider or Company may seek relief in a court of competent jurisdiction.
15.3 Continued Performance. The parties will continue to perform their obligations under this Agreement while any dispute is being resolved, except to the extent the issue in dispute precludes performance. Disputes over payment do not preclude performance.
15.4 Time Limit. To the maximum extent permitted under applicable law, claims, actions and disputes must be brought within two (2) years after the cause of action arises or they are waived.
Provider, its employees and representatives shall comply with all applicable federal, state and local laws, ordinances, statutes, rules and regulations, including those relating to wages, taxes, hours, environmental conditions, fair employment practices, equal opportunity, anti-discrimination, safety, fire prevention and working conditions. Provider is required, at its own expense, to obtain all permits, inspections and licenses from governmental authorities which may be required in connection with its performance of the Services. Provider agrees to abide by the conditions contained in the Company’s Provider Code of Conduct.
Provider shall comply with all relevant anti-bribery/anti-corruption laws and regulations, including any related policy or code maintained by Company or Company’s Customers, that apply to its businesses. These laws and regulations include, but are not limited to, the UK Bribery Act and the U.S. Foreign Corrupt Practices Act. Provider shall also comply with Company’s Anti-Corruption Policy. Provider shall not engage the Company or Company employees in any behaviors prohibited by anti-bribery/anti-corruption laws and regulations, including any payments or other activity barred by these laws and regulations. Company is responsible for paying all sales, use, value added and similar taxes, however designated, legally imposed by or payable to any federal, state, local or foreign tax or government authority on the Products and Services provided by Provider under this Agreement, (individually and collectively, “Taxes”); provided, however, that Company will not be responsible for any Taxes based or due on revenues or net income of Provider. Company will reimburse Provider for Taxes with respect to transactions under this Agreement unless Company advises Provider that an exemption applies. Taxes payable by Company will be billed as separate items in the Sitehands Platform and will not be included in Provider’s prices. If Company is required by law to withhold taxes from any payment based on information provided by Provider, then the amount of the payment due from Company to Provider shall be equal to: (i) the payment which would have been due if no withholding tax was required less (ii) the required withholding tax. Company is not required to make an increased payment to Provider due to any withholding tax. If it is subsequently determined that any portion of any amount paid to the Provider is subject to withholding taxes, Company will remit such withholding taxes and any applicable interest, late payment charges or penalties to the appropriate taxing authority and the Provider will promptly reimburse Company for (i) the amount of such withholding tax and (ii) any such interest, late payment charges or penalties, if the failure or delay in withholding tax remittance was due, in whole or in part, to Provider’s or its representative’s action or inaction.
Provider shall maintain accurate and complete records of all costs incurred under this Agreement including, without limitation, hours worked that may affect the amounts payable by Company to Provider hereunder or permit the verification of such amounts. These records shall be maintained in accordance with recognized commercial accounting practices so they may be readily audited. Provider shall permit Company or Company's representative to examine and audit these records and all supporting records at reasonable times upon seven (7) days notification of the intent to audit. Audits may be made not later than seven (7) calendar years after the completion of services rendered or seven (7) calendar years after expiration date of this Agreement, whichever comes later. The audit will be completed by an independent third party.
Provider will have and maintain a Business Continuity Program (“BCP”) applicable in case of a disaster or emergency and will implement the BCP in accordance with its terms. The BCP will be documented, auditable, and certified by an officer of Provider and will be made available to Company upon request. Provider, at its own expense, will comply with applicable import and export control laws and regulations, including those of the United States that prohibit or limit export to certain countries, for certain uses, or to certain end-users. The Party conducting the export or import shall obtain, at its own expense, all necessary export or import authorizations required for such Party to execute its obligations under this agreement. Each Party shall reasonably cooperate and exercise reasonable efforts at its own expense to support the other Party in obtaining any necessary licenses or authorizations required to perform its obligations under this agreement or in connection with associated reporting or recordkeeping obligations. Reasonable cooperation shall include providing such Party (or its designated agent or representative) reasonably necessary information (i.e. product descriptions, classifications of products and/or components (HTS, ECCN), country of origin, etc.) and documentation (i.e. import, end-user, retransfer certificates, declarations/certificates to support duty free, special tariff programs or free trade agreements, etc.). Each Party further agrees to promptly notify the other Party of any changes in facts relating to previously provided information (e.g., country of origin) or that affect previously issued documentation (e.g., declarations or certificates). Each Party represents that it is not named on any government lists of persons or entities that are prohibited or in violation from receiving services, products, and technology. The parties will not support or engage in activities as prohibited by an US embargo, prohibition or restriction.
The relationship between Company and Provider is that of "independent contractors." Provider will provide all equipment, labor and materials that may be needed to perform the Services and is solely responsible for determining which Statement of Work it will accept. Company will not provide Provider with any training and will have no control over the manner in which Provider performs Services, or the timing and location of the provision of Services. Provider has the right to determine the manner in which Services will be performed, subject to compliance with the terms of this Agreement. Provider shall have no authority to enter into contracts or binding commitments in the name or on behalf of the Company. Provider will not use the Company’s logo or marks without prior written approval, and then such use shall be only for the benefit of the Company and at the direction of the Company. Provider shall not be, nor represent itself as being, an agent of the Company, and shall not be, nor represent itself as being, authorized to bind the Company. Provider agrees, acknowledges and understands that neither it nor its employees or agents shall have the status of an employee of the Company and shall not participate in any employee benefit plans or group insurance plans or programs (including, but not limited to salary, bonus or incentive plans, stock option or purchase plans, or plans pertaining to retirement, deferred savings, disability, medical or dental), even if it is considered eligible to participate pursuant to the terms such plans. In addition, Provider understands and agrees that consistent with its independent contractor status, neither it nor its employees or agents will apply for any government-sponsored benefits intended only for employees, including, but not limited to, unemployment benefits. Provider shall defend, indemnify and hold Company harmless from any and all claims made by any entity on account of an alleged failure by Provider to satisfy any such tax or withholding obligations.
Provider and Company agree to process, store or otherwise access personal data or protected information of the Provider’s, Company’s, or Customer’s employees, clients, patients and users in strict compliance and accordance with all applicable laws, regulations, codes and standards, including the terms and conditions set forth in the Provider Privacy and Security Standards, and to abide by all of the applicable rules, terms and conditions.
24.1 Except where Provider has an existing relationship with a Customer, or where Customer has directly solicited Provider or has directly solicited competitive bidding or requests for proposal, Provider shall not knowingly, either directly or indirectly, as an employee, consultant, independent contractor, or otherwise, compete with Company with respect to the provision of Services or substantially similar services for such Customer during the Term of this Agreement. Specifically, subject to the exceptions noted in the first sentence of this Section, the Provider shall not knowingly, either directly or indirectly, as an employee, consultant, independent contractor or otherwise, solicit, nor accept any work that Company could perform for Customer during the term of this Agreement. Provider shall not attempt to divert any business away from Company.
24.2 Provider shall not, during the term of this Agreement and for twelve (12) months thereafter, solicit any Customer employee or subcontractor for the purposes of offering employment to such employee.
24.3 Company shall not, during the term of this Agreement and for twelve (12) months thereafter, solicit any Provider employee or subcontractor for the purposes of offering employment to such employee.
The interpretation of this Agreement shall be governed by the laws of the State of North Carolina without regard to (i) choice of law principles; (ii) the United Nations Convention on Contracts for the International Sale of Goods; and (iii) the Uniform Computer Information Transactions Act. The exclusive jurisdiction and venue for any dispute between the parties in connection with this Agreement is Mecklenburg County, North Carolina, and each party consents to the exclusive jurisdiction and venue in Mecklenburg County, North Carolina and agrees that all proceedings and actions, including all discovery matters, shall take place solely and exclusively within Mecklenburg County, North Carolina
Provider Services Agreement Exhibit A
STATEMENT OF WORK FOR ON-DEMAND SUPPORT
Last Updated: May 18th, 2020
This Statement of Work (“SOW”) between Sitehands, Inc. (“Sitehands” or “Company”) and Provider is based upon the descriptions, services and assumptions stated below. Provider will deliver various technical services to Sitehands’ customers and clients (“Customers)”. This SOW is governed by, and incorporates by reference, the terms and conditions of the Provider Services Agreement.
This Statement of Work for On-Demand Support is a Company Attachment as that term is defined in the Provider Services Agreement that Provider executed with Sitehands, Inc. (the “PSA”). Provider’s acceptance of the PSA constitutes Provider’s acceptance of this Statement of Work for On-Demand Support, which forms a part of the PSA.
On-Demand – Work Orders issued through the Sitehands catalog with a set scope, date, location and time.
Services/Dispatch Environments:End User Locations: Office, Plant, Warehouse, Manufacturing Facility, Regional Office, Branch Office, Other (Refinery, Remote Satellite). Equipment may include but is not limited to:
- End User devices: desktops / laptops / printers / mobile devices / Phones (voice)
- Infrastructure equipment: file/application/storage servers, network equipment (routers, switches, wireless access devices, firewalls)
- Structured cabling: copper/fiber, racks, patch panels, patching, cable management etc.
Data Centers / Switch / POP Locations. Equipment may include:
- Servers, Storage, Backup
- Network, Wireless Access, Firewalls
- Structured cabling: copper/fiber, racks, patch panels, patching, cable management etc.
Bundling: Sitehands bundles work orders where a technician is assigned to perform more than one work order consecutively or in parallel at a site or adjacent site(s) requiring less than 5 miles of travel between sites. Regardless of this action being performed prior to, during or after dispatch, all qualify as a single dispatch.
Tools and Equipment: Technician shall be responsible for providing all industry standard tools and test equipment necessary to perform the Services. Required tools and test equipment shall include:
- Laptop or other portable computer with console cable for the tasks break-fix and installs.
- Normal hand tools used to service telecommunications products.
- Loopback connectors (i.e. DDS, T1, V.35, X.21) when testing circuits.
- Must also have appropriate permanent labeling materials.
- A device capable of taking digital photographs. This device must be able to transmit photos to Sitehands platform.
- Ladder as needed.
- Polarity Tester
- Service Incident/Request Initiation:
- Site of Service
- Time technician(s) are requested onsite
- Task Type
- Level of resource requested
- Summary of work and any special instructions
Provider will receive Work Orders two ways:
- Company Contact Center: 866-462-8605 opt. 1
- A service request via the Company portal – training and credentials to be provided by Company.
- 15-minute acknowledgement of Work Order
- Accept/ reject guidelines. Note: Sitehands will review accepted Work Orders to align right skillset; Sitehands may decline or reject any accepted Work Order.
- Notify Sitehands Global Operations Center fifteen (15) minutes prior site arrival.
- Arrive at the scheduled time – must arrive on or before the scheduled time to avoid being late.
- Notify Sitehands Global Operations Center upon dispatch completion (when applicable).
- Provider agrees that the hourly rates the Provider will enter into the Sitehands Platform are all inclusive, and no travel costs will be billed to Sitehands.
- Provider agrees to utilize the appropriate skill level technician for any Work Order. Should Provider utilize a higher skilled technician to fulfil the requirements of any Work Order the Provider will invoice Sitehands the corresponding rate for the Work Order itself and not the corresponding rate for the technician assigned.
- A minimum of two (2) hours labor will be invoiced on all dispatches.
- Any time beyond the initial two (2) hour minimum will be billed at the hourly rate in 30-minute increments with a ten (10) minute grace period. For example; if a Provider resource is on-site for 2 hours and 40 minutes, Provider will invoice for 2.5 hours. If a Provider resource is on-site for 2 hours and 45 minutes, Provider will invoice for 3 hours.
- “Regular business hours” is defined as Monday through Friday 8:00AM until 6:00PM in the time zone of the location where services are performed. “After business hours” is defined as any time after 6:00PM and before 8:00AM the following day and includes any hours provided on weekends and/or holidays.
- General Program Terms and Conditions:
- Sitehands platform is the primary source of communication before, during and after dispatch. Dispatchers must utilize the platform to communicate resource assignments, provide updates, communicate with the Sitehands team and for completing invoices. Technicians are responsible for downloading the mobile application on their smartphones and performing all check in, check out and deliverable uploads therein unless directed otherwise by Sitehands either in the work order scope or documented in the chat stream on that work order.
- Provider shall provide all staff and tools to plan, schedule, coordinate and ensure the performance of services described.
- Some activities, such as large projects, complex deployments, technical upgrades, etc. may be beyond the scope of a single resource. When encountered, the Provider dispatched resource will communicate with the Sitehands Global Operations Center, explaining the situation and an agreeable solution will be determined. In some cases, this may lead to additional Sitehands and/or dispatched resources from Provider.
- Provider will coordinate with Sitehands resources for the necessary security requirements for dispatched technical resources to access Sitehands Customer locations.
- Provider will make every reasonable effort to comply with equipment manufacturer’s installation and de-installation specifications.
- At no time, will Sitehands provide any microcode/patches/fixes, although Provider’s field resources may install/implement such microcode/patches/fixes where entitled and provided by Customer.
- Sitehands Customer is responsible for compliance with manufacturer’s equipment warranty terms and conditions.
- Provider is not responsible for manufacturer products (hardware or software) that do not perform as specified. Providers’ time and effort involved in identifying and resolving such manufacturer hardware and/or software bugs is outside the scope of services provided, unless that type of troubleshooting is in the actual scope of the service Sitehands is providing. The manufacturer is expected to solve defects in the hardware and/or software they supply. Any additional effort needed by Sitehands to assist in this process will result in additional fees.
Sitehands On Demand Service Level Agreement Exhibit B
Sitehands On Demand Service Level Agreement
Last Updated: May18th, 2020
This Sitehands Service Level Agreement is a Company Attachment as that term is defined in the Provider Services Agreement that Provider executed with Sitehands, Inc. (the “PSA”). Provider’s acceptance of the PSA constitutes Provider’s acceptance of this Sitehands Service Level Agreement, which forms a part of the PSA.
Company may change, modify, add or remove portions of this Service Level Agreement (“SLA”) (each, an “SLA Update”) from time to time without prior notice, and such SLA Updates will be effective upon Provider’s accepting any Work Order or entering into any Statement of Work subsequent to such SLA Update. Provider’s accepting a Work Order or entering into a Statement of Work after an SLA Update confirms Provider’s acceptance of the SLA Update. Company encourages Provider to frequently review this SLA to ensure it understands the latest terms and conditions associated with its performance of Services. If Provider does not agree to the SLA Update, it should not accept any new Work Order or enter into a new Statement of Work.
|Service Level||Adherence||Measurement Window||Definitions of Target Attainment||Measurement Approach/Tools|
|Update Work Order on Platform (Reject or Accept a Work Order)||100%||Monthly||When a Provider receives an offer, or updates to an offer, acceptance or rejection must be performed on Sitehands platform. Provider dispatchers are required to accept or decline the offer on platform. If accepted, the dispatcher must provide a technician name and select the appropriate rate card. If Sitehands performs these functions on behalf of Provider, Provider fees associated with the applicable Work order shall be subject to a 5% discount. The only exception to this policy would be through bulk assigned project requests performed through the Sitehands Project Forecasting and Scheduling Team.||Sitehands|
|On Time Resource Check In||100%||Per Work Order||Technician arrives on site and checks in, via the Sitehands Platform, a minimum of 15 minutes before the scheduled start time (Listed as the arrival time on the Work Order on the Sitehands Platform). Late check-ins result in a 5% discount of the Work Order invoice.||Sitehands|
|Resource completion of Work Order||100%||Per Work Order||Technician will check out via the Sitehands Platform and submit work to be reviewed by the Sitehands Operations Center to verify the Job Completion Form (JCF) is correct and all required materials have been provided before leaving the site. Technician will call to check out with the Sitehands Operation Center. Leaving the site before work has been reviewed and accepted by the Sitehands Operations Center may result in a discount up to 100% of the Work Order invoice. (“Major Incident”).||Sitehands; Verifiable via Sitehands phone recording system|
|No Call or No Show or cancellations with less than 24 hours notice||96%||Monthly||Provider does not show up for the assignment and/or cancels with less than 24 hours’ notice. Provider will reimburse 100% of Work Order Value to Sitehands once completed even if another provider completes the Work Order (“Major Incident”).|
Cumulative cancelations or no shows falling below the 96% adherence percentage are subject to a 5% discount on the affected monthly invoice.
|Tech unprepared or unqualified||96%||Monthly||Provider is un-Prepared or unqualified to perform the work as outlined on the Work Order, Provider is subject to up to a 100% discount in fees associated with the Work Order and in the event Provider is unable to remediate and satisfy the Work Order directly and immediately, Provider may be responsible to reimbursement for any additional dispatch fees incurred by Sitehands. (“Major Incident”).|
Cumulative occurrence - The use of unprepared and/or unqualified technicians falling below the 96% adherence percentage may be subject to an additional 5% discount on the affected monthly invoice.
|Sitehands QA||96%||Monthly||Provider provides a complete and satisfactory response to Sitehands written inquiries about Work Order-related documentation (Job Completion Form and Invoice) within two (2) business days.||Sitehands|
|Invoice sent to Sitehands||100%||Per Work Order||Within five (5) business days, Provider must review and submit invoices on the Sitehands Platform (measured in accordance with the Customer’s business days) after completion of work. Late submissions can result in a 5% discount to the minimum specified rate within the Provider rate card for the affected Work Order.||Sitehands|
|Technician use of Mobile Application and associated features||100%||Per Work Order||Provider technician must download the Sitehands mobile application on their smartphone and enable location services while using the application. Technicians must use the mobile application to check in and check out of Work Orders. A 5% discount will be applied to all affected Work Orders.||Sitehands|
PLEASE PRINT THIS AGREEMENT FOR YOUR RECORDS