This Service Provider Agreement (the “Agreement”) sets forth terms under which the service provider (“Service Provider”) shall, at the request of Aryta Ltd., a company registered in England and Wales with registered number 08867849, and having its registered office at 1 Rosemont Rd., London, England NW3 6NG (“Aryta”) provide professional services either directly to Aryta or to customers of Aryta on Aryta’s behalf.
“Confidential Information” means all information which is identified or treated by Aryta or any Group Company or any of the Group’s clients or customers as confidential or which by reason of its character or the circumstances or manner of its disclosure is evidently confidential including, without limitation, all Deliverables, all information designated by Aryta as confidential, all information or data concerning or related to Aryta’s products (including the discovery, invention, research, improvement, development, manufacture, or sale thereof), processes, or general business operations (including sales, costs, profits, pricing methods, organization, and employee and customer lists), and any information of the foregoing nature received from Aryta related to Aryta’s customers or clients, which, if not otherwise described above, is of such a nature that a reasonable person would believe it to be confidential or proprietary.
“Deliverables” means the tangible and intangible results of the Services, including, but not limited to, any report, software, code, documents, materials, models, designs, drawings, processes, formulae, inventions, methodologies know-how, Confidential Information or other work performed, made, created, devised, developed or discovered by Service Provider in connection with this Agreement (and whether or not made or discovered during the course of Service Provider’s performance of Service Provider’s duties under this Agreement) either alone or with any other person in connection with or relating to the business of Aryta or any Group Company or capable of being used or adapted for use therein or in connection therewith.
“Group Company” means any company which, for the time being, is an affiliate company of Aryta Ltd., a holding company (as defined by Section 155 of the Companies Act 1963) of Aryta Ltd. or any subsidiary (as defined by Section 155 of the Companies Act 1963) of Aryta Ltd. or of any holding company of Aryta Ltd.
“Intellectual Property Rights” means any and all existing and future intellectual or industrial property rights in and to any Deliverables (whether registered or unregistered) including all existing and future patents, copyrights, design rights, database rights, trade marks, semi-conductor topography rights, plant varieties rights, internet rights/domain names, know how and any and all applications for any of the foregoing and any and all rights to apply for any of the foregoing in and to any Deliverables.
“Open Source Software” means any “open source” code (as defined by the Open Source Initiative), “free” code (as defined by the Free Software Foundation), community source code, including any libraries or code licensed under the General Public License, or any other software that is generally made available for free on the Internet in source code form.
“Pre-Existing Intellectual Property” means any proprietary methodologies, tools, models, software, procedures, documentation, know-how, processes, trade secrets, inventions, or works of authorship that have already been conceived or developed by Service Provider before Service Provider renders any Services under this Agreement.
“Third Party Materials” means any code, libraries, programs, software, documentation or other intellectual property of any type which is not created solely by Service Provider.
Service Provider shall provide professional services (“Services”) to Aryta as described on one or more Statements of Work signed by Service Provider and Aryta, which reference this Agreement (“SOW” or “Statement of Work”). Service Provider shall perform Services in a prompt manner and provide each Deliverable no later than the delivery dates specified in the applicable SOW. At the direction of Aryta, Service Provider shall provide Services directly to Aryta or to customers of Aryta on Aryta’s behalf. The parties may execute additional Statements of Work describing Services, which will become part of this Agreement upon execution by Service Provider and Aryta.
3. No Subcontractor.
Service Provider may not subcontract the Services without the prior express written consent of Aryta.
Aryta shall have the right to modify, reject, cancel or terminate any SOW and any related plans, schedules or work in process with written notice to Service Provider. In the event Aryta terminates a Statement of Work other than for Service Provider’s material breach pursuant to Section 9 (Term and Termination) prior to completion of Services, Aryta shall pay Service Provider the fees due under the SOW with respect to Services completed as of the date of termination.
5. Third Party Materials and Open Source.
5.1 Third Party Materials. Service Provider shall not incorporate any Third Party Materials into a Deliverable, furnish any Third Party Materials into a Deliverable, furnish any Third Party Materials in conjunction with a Deliverable, or develop a Deliverable in a manner that requires Aryta to use any Third Party Materials in order to use such Deliverable, unless Service Provider (i) has specifically identified such Third Party Materials in the applicable SOW or otherwise obtained Aryta’s prior written consent and (ii) has obtained a license for Aryta’s (and Aryta’s licensees’) benefit which is as extensive as the license set forth in Section 7.7(b) below (“Third Party Materials License”).
5.2 Use Of Open Source. The obligations set forth in Section 5.1 with respect to Third Party Materials apply to any use of Open Source Software in connection with any Deliverable (excluding the obligation to obtain a Third Party Materials License unless otherwise specified in the applicable SOW). If Aryta approves use by Service Provider of any Open Source Software in connection with a Deliverable, Service Provider shall include documentation with each such Deliverable identifying any and all Open Source Software that is included in such Deliverable and provide Aryta a copy of the applicable license prior to inclusion.
5.3. Types of Open Source Never Allowed. Notwithstanding the foregoing, Service Provider shall not provide as part of any Deliverable, or otherwise use in connection with the Services, any software which contains any Open Source Software which is licensed under the “General Public License,” “LGPL,” “AGPL,” or any other license which could (i) compromise or interfere in any way with Aryta’s intellectual property rights or (ii) require Aryta to publicly release, distribute or license the source code to any Deliverable, to any Aryta software, or to any of Aryta’s customers’ or clients’ software, (iii) require that any disclosure, distribution or license of any Deliverable, any Aryta software, or any of Aryta’s customers’ or clients’ software be at no charge, or (iv) require that any other licensee of any Deliverable, any Aryta software, or any of Aryta’s customers’ or clients’ software be permitted to modify, make derivative works of, reverse-engineer or redistribute such Deliverable or software.
6. Representations and Warranties.
6.1 Service Provider’s Representations and Warranties. Service Provider hereby represents and warrants that:
(a) Due Authority. Service Provider has full right and power to enter into and perform this Agreement without the consent of any third party, and its performance under this Agreement will not conflict with any other obligation Service Provider may have to any other party.
(b) Standard of Performance. Service Provider will perform the Services in a timely, professional and workmanlike manner and with a degree of quality equal to or higher than applicable industry standards for similar services. In addition, all Services and each Deliverable shall conform in all material respects with the description set forth in the SOW.
(c) No Harmful Code. The Services and all Deliverables shall be free of any: (i) viruses, worms, time bombs, Trojan horses or other harmful, malicious or destructive code; (ii) software disabling devices, time-out devices, counter devices and devices intended to collect data regarding usage of the software without the knowledge of Aryta and (iii) Open Source Software, except as expressly authorized by Aryta in writing in accordance with Section 5 (Third Party Materials and Open Source Software).
(d) Intellectual Property Rights. Each Deliverable is and will be an original work of Service Provider except for any Third Party Materials and Pre-Existing Intellectual Property incorporated therein as approved under Section 5 (Third Party Materials and Open Source Software) or 7.7 (Pre-Existing Intellectual Property), as applicable. Neither the Deliverables nor any element thereof will (i) infringe the intellectual property rights of any third party or (ii) be subject to any restrictions or to any mortgages, liens, pledges, security interests, encumbrances or encroachments.
(e) No employment, agency or partnership. Service Provider warrants and represents to Aryta that Service Provider is an independent contractor. Service Provider shall perform services on behalf of Aryta in the capacity of independent contractor, and not as an employee, worker, partner, agent or joint venture partner of Aryta or any Group Company. Service Provider shall not have any right or power whatsoever to contract on behalf of any Group Company or bind any Group Company in any way in relation to third parties and will not hold Service Provider out as having such authority unless specifically authorised to do so. Service Provider is supplying the Services to Aryta and any Group Company as part of Service Provider’s business undertaking. The Company and any Group Company receiving the Services is/are Service Provider’s clients for these purposes.
6.2 Remedy of Defects. Service Provider shall, without charge, correct any non-conformity, defect or malfunction in any Deliverable reported by Aryta within 30 days of receipt of notice from Aryta, or if Service Provider is unable to make the Deliverable operate as warranted within such 30-day period, then Aryta may terminate immediately the applicable SOW, and Service Provider shall refund to Aryta all fees paid for such defective Services within 10 days of termination. The remedies set forth in this Section 6.2 shall be non-exclusive.
6.3 Warranty Disclaimer. EXCEPT FOR SERVICE PROVIDER’S WARRANTIES SET FORTH IN THIS AGREEMENT AND ANY SOW, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Inventions and Other Deliverables.
7.1 Creation of Deliverables. Service Provider may make or create Deliverables during the Appointment.
7.2 Disclosure and Ownership of Deliverables. Service Provider must immediately disclose to Aryta all Deliverables and all Intellectual Property Rights. Both the Deliverables and the Intellectual Property Rights will (subject to sections 39 to 43 of the Patents Act 1977) belong to and be the absolute property of Aryta or any other person Aryta may nominate. Service Provider hereby assigns and agrees to assign all Intellectual Property Rights and any other rights, title and interest in and to the Deliverables to Aryta.
7.3 Protection, Registration and Vesting of Deliverables. Service Provider shall immediately on request by Aryta (during Service Provider’s engagement or after its termination) and at the expense of Aryta:
(a) apply or join with Aryta or any Group Company in applying for any Intellectual Property Rights or other protection or registration (“Protection”) in the United Kingdom and in any other part of the world for, or in relation to, any Deliverables;
(b) execute all instruments and do all things necessary for vesting all Intellectual Property Rights or Protection when obtained and all right, title and interest to and in the same absolutely and as sole beneficial owner in Aryta or such Group Company or other person as Aryta may nominate; and
(c) sign and execute any documents and do any acts reasonably required by Aryta in connection with any proceedings in respect of any applications and any publication or application for revocation of any Intellectual Property Rights or Protection.
7.4 Waiver of Rights by Service Provider. Service Provider hereby irrevocably and unconditionally waives all rights under Chapter IV Copyright, Designs and Patents Act 1988 and any other moral rights which Service Provider may have in the Deliverables, in whatever part of the world such rights may be enforceable including:
(a) the right conferred by section 77 of that Act to be identified as the author of any such Deliverables; and
(b) the right conferred by section 80 of that Act not to have any such Deliverables subjected to derogatory treatment.
7.5 Power of Attorney. Service Provider hereby irrevocably appoints Aryta to be Service Provider’s attorney and in Service Provider’s name and on Service Provider’s behalf to execute any such act and to sign all deeds and documents and generally to use Service Provider’s name for the purpose of giving to Aryta the full benefit of this Section. Service Provider agrees that, with respect to any third parties, a certificate signed by any duly authorised officer of Aryta that any act or deed or document falls within the authority hereby conferred shall be conclusive evidence that this is the case.
7.6. Statutory Rights. Nothing in this Section 7 shall be construed as restricting the rights of Service Provider or Aryta under sections 39 to 43 Patents Act 1977.
7.7 Pre-Existing Intellectual Property.
(a) Pre-Approval. Service Provider shall not use any Pre-Existing Intellectual Property in connection with this Agreement unless Service Provider (i) has specifically identified such Pre-Existing Intellectual Property in the applicable SOW and (ii) has the right to use such Pre-Existing Intellectual Property for Aryta (and Aryta’s licensees’) benefit and to issue the licenses set forth in this section.
(b) License. If Service Provider incorporates any Pre-Existing Intellectual Property into a Deliverable or furnishes any Pre- Existing Intellectual Property in conjunction with a Deliverable, Service Provider hereby grants Aryta a non-exclusive, royalty-free, irrevocable, worldwide, perpetual license to: (i) make, have made, sell, use, execute, reproduce, modify, adapt, display, perform, distribute, make derivative works of, import, and disclose the Pre-Existing Intellectual Property or products and services using the Pre-Existing Intellectual Property in conjunction with the use of the Deliverable and (ii) authorize or sublicense others from time to time to do any or all of the foregoing.
In exchange for Service Provider’s obligations under this Agreement, Aryta shall pay Service Provider the fees set forth in the applicable SOW. All payments are due in British Pounds Sterling within the later of 60 days of Aryta’s receipt of an undisputed invoice (to include Value Added Tax (“VAT”) where necessary), and, if applicable (in cases where Service Provider is performing Services on behalf of an Aryta customer), 10 days of receipt of payment of such Services from Aryta’s customer. Service Provider shall not invoice Aryta until Aryta’s acceptance of the Services or Deliverables (as applicable) in accordance with the payment schedule set forth in the applicable SOW. Aryta shall not reimburse Service Provider for any expenses unless such expenses are specified in the applicable SOW. When specified in the applicable SOW, Aryta will pay actual and reasonable, pre- approved travel and related expenses incurred by Service Provider in performing the Services, but only in accordance with Aryta’s then-current travel and expense policies. Service Provider acknowledges that this Section 8 sets forth the only compensation which Service Provider is entitled to receive in exchange for the Services and that Service Provider shall not be entitled to any other payments, reimbursements, royalties or consideration of any kind.
9. Term and Termination.
This Agreement remains in effect until terminated in accordance with this Section 9. Either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement within 30 days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days thereafter). Aryta may terminate this Agreement at any time for any reason and without warning. Should Aryta exercise this right, it shall pay Service Provider up until the day of termination. All of the provisions of this Agreement shall survive any termination or expiration except Sections 2 (Services), 3 (No Subcontractor), 4 (Changes) and 8 (Payment) (except that Section 8 shall survive with respect to payments earned prior to termination).
10. Independent Contractor.
10.1 Obligation to Pay Tax. Service Provider shall be solely responsible and liable for any employment related taxes, National Insurance contributions, VAT, insurance premiums or other employment benefits or contributions required by law respecting Service Provider’s performance of the Services or receipt of the fee by Service Provider, or both (including any interest or penalties incurred in respect of such payments).
10.2 Tax Indemnity. Service Provider shall indemnify and keep indemnified Aryta and each Group Company for all time on demand from and against any and all costs, claims, penalties, liabilities and expenses incurred in respect of income tax, National Insurance, VAT or other contributions due by Service Provider in relation to the provision of the Services.
10.3 Deductions. Without prejudice to the indemnity in Section 10.2, if for any reason, Aryta or any Group Company shall become liable to pay, or shall pay, any taxes or other payments referred to in Section 10.1, Aryta shall be entitled to deduct from any amounts payable to Service Provider all amounts so paid or required to be paid by or in respect of it or any Group Company in that respect.
10.4 No Eligibility for Benefits. Neither Service Provider nor any of Service Provider’s employees or subcontractors will be eligible for any benefits (including, without limitation, stock options, health insurance or retirement benefits) normally provided by Aryta to its employees.
10.5 Background Checks. Service Provider represents and warrants that it conducts industry-standard background checks on all of its personnel, including, without limitation, criminal background checks and past employment verification. Service Provider shall conduct any additional background checks, at its expense, that may be required by either Aryta or an Aryta customer or client.
11. Confidential Information.
Other than in the performance of the Agreement, neither Service Provider nor Service Provider’s agents, employees, or subcontractors shall use or disclose to any person or entity any Confidential Information of Aryta (whether in written, oral, electronic or other form), which is obtained from Aryta or otherwise prepared or discovered either in the performance of this Agreement, through access to Systems (as defined below), or while on Aryta’s premises. The provisions of this Section relating to use and disclosure shall not apply to any information that: (i) is rightfully known to Service Provider prior to disclosure by Aryta, (ii) is rightfully obtained by Service Provider from any third party without restrictions on disclosure, (iii) is or becomes available to the public without restrictions; or (iv) is disclosed by Service Provider with the prior written approval of Aryta. Service Provider warrants and represents that each employee, agent, or subcontractor who performs work under this Agreement has been informed of the obligations contained herein and has agreed to be bound by them. This obligations set forth in this Section shall survive any expiration of termination of this Agreement.
12. Access to Aryta’s Systems and Software.
12.1 Access to Aryta’s Systems. Access, if any, to Aryta’s computer, telecommunication or other information systems (including computers, networks, voice mail, etc.) or those of any Aryta client or customer (“Systems”) is granted solely to facilitate the business relationship described in this Agreement, and is limited to those specific Systems, time periods, and personnel designated by Aryta. Access is subject to business control and all applicable policies, laws and regulations. Service Provider will abide by all information protection or data privacy policies of Aryta or customers of Aryta, and all applicable laws and regulations. Any access to or use of any Systems except as expressly authorized is expressly prohibited. Without limiting the foregoing, Service Provider warrants that it has adequate security measures in place to comply with the above obligations and to ensure that access granted hereunder will not impair the integrity and availability of Systems. Upon reasonable notice, Aryta may audit Service Provider to verify Service Provider’s compliance with these obligations.
12.2 Access to Aryta’s Software. Solely to the extent Aryta determines it is necessary for Service Provider to have access to certain Aryta software or tools (“Aryta Software”) in order to perform the Services, subject to the terms and conditions of this Agreement, Aryta grants to Service Provider a non-exclusive, non-transferable, non-sublicensable, royalty-free license, to use the Aryta Software solely for the performance of the Services. Service Provider will not use any of the trade secrets, algorithms, inventions, or technology revealed or embodied by the Aryta Software except as necessary to perform the Services. No right is granted by this Agreement for the use of the Aryta Software directly or indirectly by others. Service Provider may not sublicense or otherwise transfer, by contract, operation of law, or otherwise, any of the rights granted to Service Provider herein. All rights not expressly licensed herein are reserved to Aryta and its suppliers.
Service Provider will defend, indemnify and hold harmless Aryta, each Group Company, their officers, directors, employees, sublicensees, customers and agents from any and all direct or indirect claims, losses, liabilities, damages, expenses and costs (including legal fees and court costs) arising from or relating to: (i) any breach or alleged breach of any representation, warranty or other provision of this Agreement by Service Provider, and (ii) any infringement or alleged infringement by Service Provider, the Services or any Deliverable of any third-party intellectual property rights; (iii) any act, neglect or default of Service Provider or any person authorised by Service Provider to act on Service Provider’s behalf, including any personal injury or property damage (a “Claim”). Aryta shall give Service Provider written notice of any such Claim and Aryta has the right to participate in the defense of any such Claim at its expense. In no event shall Service Provider settle any Claim without Aryta’s written consent (which consent shall not be unreasonably withheld). From the date of written notice from Aryta to Service Provider of an such Claim, Aryta shall have the right to withhold from any payments due Service Provider under this agreement the amount of any defense costs, plus additional reasonable amounts as security for Service Provider’s obligations under this Section.
14. Limitation of Liability.
EXCEPT FOR AN INDEMNIFICATION CLAIM, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL Aryta’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES DUE TO BE PAID TO SERVICE PROVIDER UNDER THIS AGREEMENT.
Service Provider is solely responsible for maintaining such adequate health, automobile, workers’ compensation, unemployment compensation, disability, liability, and any other type of insurance required by law or as is common practice in Service Provider’s business including a comprehensive policy of insurance to cover Service Provider’s liability in respect of any act, omission or default for which Service Provider may himself become liable, or become liable to indemnify the Company under this Agreement (including insurance to cover third party, employer’s and professional liability claims). Upon request, Service Provider shall provide Aryta with certificates of insurance or evidence of coverage before commencing performance under this Agreement. Service Provider shall acquire additional insurance, at its expense, if so required by either Aryta or an Aryta customer or client. Service Provider shall provide adequate coverage for any Aryta property under the care, custody or control of Service Provider or Service Provider’s personnel.
16. Compliance with Laws and Other Regulations.
Each party shall perform all of its obligations under this Agreement in compliance at all times with all applicable laws, including, but not limited to, those relating to privacy and data protection. Contractor shall additionally comply with all regulations, policies and guidelines of Aryta and Aryta customers or clients.
Neither party shall publicize or disclose the existence or terms of this Agreement to any third party without the prior written consent of the other, except as may be required by law. In particular, no press releases shall be made without the mutual written consent of each party.
Service Provider will keep and maintain complete and accurate records in connection with its performance of the Services and all fees charged to Aryta under this Agreement and will retain these records for at least three (3) years after the amounts documented in these records become due. Aryta may audit such records during regular business hours upon reasonable advance notice and subject to reasonable confidentiality procedures not more than twice per year.
19. Third Party Rights
Nothing in this Agreement is intended to confer on any person any right to enforce any term of this Agreement which that person would not have had but for the Contracts (Rights of Third Parties) Act 1999. No right of any Party to agree any amendment, variation, waiver or settlement under or arising from or in respect of this Agreement, or to terminate this Agreement, shall be subject to the consent of any person who has rights under this Agreement by virtue of the Contracts (Rights of Third Parties) Act 1999.
Neither party may assign this Agreement without the prior written consent of the other party and any attempt to do so will be void. Notwithstanding the foregoing, Aryta may assign this Agreement to an entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or part of the voting securities or assets of Aryta upon written notice to Service Provider. Any notice or consent under this Agreement will be in writing to the address or email address specified below within the signature block in the accompanying SOW. Terms and conditions of this agreement are subject to change without prior notice and are effective upon any such update. For the duration of this agreement and for thirty-six (36) months after, Service Provider will not hire any persons employed by Aryta, whether or not such resource had direct interaction with Service Provider under this Agreement. This restriction includes, but is not limited to any employee, subcontractor, or agent of Aryta. Service Provider agrees that for the term of this Agreement, and any other related definitive agreements that may be entered into by and between the parties (e.g., statements of work), and for a period of two (2) years thereafter, Service Provider shall not, directly or indirectly, bid for, offer, sell or otherwise provide any services or products that directly compete with Aryta’s then-existing services or products, to any third party for which Aryta and Service Provider have offered to deliver or have jointly delivered services, or any third parties that Service Provider was initially introduced to solely through Aryta. No provision of this Agreement will be waived by any act, omission or knowledge of a party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving party. Service Provider will abide by all policies and guidelines of Aryta and customers of Aryta. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. This Agreement is governed by and to be construed in accordance with English law. Each party hereby submits to the exclusive jurisdiction of the English courts as regards any claim, dispute or matter arising out of or in connection with this Agreement and its implementation and effect. Any waivers or amendments shall be effective only if made in writing signed by a representative of the respective parties. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties, and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. In the event that Aryta loans Service Provider any equipment during the course of its engagement, Service Provider shall be responsible for returning it in the same condition in which Service Provider received it. Such equipment will be loaned as is with all faults. Aryta reserves the right to charge Service Provider for any damage it finds, beyond the normal wear and tear.