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OUTSOURCING SERVICES
AGREEMENT
by and between
DAS FAMILY HOLDINGS
and
BPO MANAGEMENT SERVICES,
INC.
dated as of December 15,
2006
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OUTSOURCING SERVICES
AGREEMENT
This Outsourcing Services Agreement (the "
Agreement ") is made this 15 th day of December, 2006 (the "
Effective Date "), between Das Family Holdings, a company
incorporated in India (hereinafter " PROVIDER ") and BPO
Management Services, Inc., a Delaware corporation (formerly
netGuru, Inc., hereinafter " CLIENT ").
WHEREAS, PROVIDER is in the business of providing
technical expertise in information technology, and business process
outsourcing, and other technical consulting services;
and
WHEREAS, CLIENT desires to use PROVIDER’s
services, such as computer software programming, systems analysis,
design project management, business process (the " Services
"), and PROVIDER agrees to provide such Services to
CLIENT.
Accordingly, in consideration of the promises and
covenants set forth below, the parties agree as follows, intending
to be legally bound:
1. Scope of
Agreement.
a. PROVIDER agrees
to provide the Services to CLIENT as specified in one or more
Statements of Work that may be executed from time to time by
PROVIDER and CLIENT, as more further described in Section 9 herein.
In the event of a conflict between the terms provided in any such
Statement of Work and the terms of this Agreement, the terms of
this Agreement shall prevail, except for the fee structure where
the Statement of Work shall control. CLIENT reserves the right to
modify the Services required under an executed Statement of Work
from time to time, as its business needs change, and any increase
or decrease in Services required from CLIENT shall be reflected in
adjustments to the fees provided in the applicable Statement of
Work. All such changes shall be provided in a revised Statement of
Work executed by PROVIDER and CLIENT, and by this reference shall
be attached as an amended Addendum hereto and made a part
hereof.
b. The Services
shall be performed accurately in accordance with generally accepted
standards in the Services industry in the United States and in
compliance with instructions from CLIENT. Services performed will
be subjected to proper quality assurance procedures, which shall be
set forth in the applicable Statement of Work.
c. PROVIDER shall
provide personnel adequately trained in the Services. PROVIDER
agrees that all personnel assigned to work on CLIENT projects shall
undergo ongoing development and training to ensure current
knowledge regarding the Services.
d. PROVIDER shall
abide by CLIENT’s policies and procedures for the purpose of
ensuring that information obtained by PROVIDER in the course of
performing Services under this Agreement shall be kept confidential
and shall not be disclosed except as required by law and as
necessary for the performance of PROVIDER’s obligations
hereunder.
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e. PROVIDER will
assign an Account Manager in India to work with CLIENT and assume
complete responsibility for the account.
2. Term. This Agreement shall be effective upon its execution by both
parties and shall remain in effect for an initial period of 12
months (the " Term "). This Agreement shall automatically
renew for successive periods of one year, unless and until
terminated by either party as provided below.
3. Intellectual
Property.
a. CLIENT warrants
that the use by PROVIDER of any and all materials furnished by
CLIENT to PROVIDER under this Agreement will not violate or
conflict with any intellectual property rights of any third parties
including, but not limited to, copyrights, patents and trademarks.
To the extent applicable hereunder, CLIENT warrants that it is
authorized to permit PROVIDER to use all relevant code for the
purposes of performing services hereunder.
b. All original
works of authorship, trade secrets and know-how that are conceived,
originated or developed by PROVIDER or its employees, agents,
consultants or subcontractors (whether alone or in combination with
others), directly as a result of the Services rendered to CLIENT
hereunder (collectively, "Inventions"), shall be the sole and
exclusive property of CLIENT and shall be considered "Works Made
for Hire", and PROVIDER hereby assigns to CLIENT any rights it may
have or acquire in such Inventions. PROVIDER agrees to (and shall
cause its employees, agents, consultants or subcontractors to)
execute any and all documents which CLIENT deems necessary to
transfer or assign such rights to CLIENT.
4. Confidential
Information.
a. For purposes of
this Agreement, "Confidential Information" shall mean any
information that relates in any way to the business of the
disclosing party, its client’s or patients of its clients,
including, without limitation, (i) financial information pertaining
to the disclosing party or its clients; (ii) the identity of the
disclosing party’s actual or potential clients or any of the
individuals associated with or employed by them; (iii) proposals,
quotes, requests for quotes, marketing plans, and financial
analysis; (iv) the facts, terms and copies of any of the disclosing
party’s agreements with its clients, with the receiving party
or with others; (v) all written information regarding the
disclosing party or its client’s furnished to the receiving
party; (vi) all proposed campaigns, products, plans, techniques or
ideas developed by the disclosing party and revealed to the
receiving party in connection with the business of the disclosing
party; (vii) referral sources and fee structure; and (viii)
intellectual property, specifically pertaining to certain processes
that are documented and identifiable as unique to their business
and not generally common practice in the disclosing party’s
industry. For the purpose of this Agreement, "disclosing party"
shall mean the party furnishing Confidential Information to the
other party to this Agreement and "receiving party" shall mean the
party furnished with Confidential Information by the other party to
this Agreement.
b. "Confidential
Information" shall not include: (i) information which is now
publicly available or which later becomes publicly available
through no fault of the receiving party (but only after it has
become publicly available); (ii) information which was already
known to the receiving party before disclosure by the disclosing
party or its clients; (iii) information which is lawfully obtained
by the receiving party from a third party, not an agent, employee
or affiliate of the other party; or (iv) information which is
developed independently by the receiving party’s employees
who have not had access to the information disclosed by the
disclosing party.
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c. The receiving
party agrees that it shall: (i) not use any of the Confidential
Information other than for the purpose of performing the Services;
(ii) not disclose any Confidential Information to any party without
the prior written consent of the disclosing party; (iii) retain
Confidential Information in the strictest of confidence and limit
internal dissemination of the Confidential Information to
individuals whose duties justify the need to know such Confidential
Information in connection with the performance of the Services and
who have been informed of their obligation to maintain the secrecy
of such Confidential Information and have agreed in writing to
abide by such obligation; and (iv) limit external dissemination of
the Confidential Information outside of the receiving party to such
legal, banking, technical or other advisors whose functions in
assisting the receiving party justify the need to know such
Confidential Information and who have been informed of their
obligation to maintain the secrecy of such Confidential Information
and have agreed in writing to abide by such obligation. Upon the
disclosing party’s request at any time, the receiving party
will promptly return to the disclosing party any and all
Confidential Information that the receiving party then has in its
possession, without retaining any copies, samples or other tangible
records.
d. No right to the
Confidential Information is granted, and nothing cont
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