Terms of Service
Last Updated On: July 1, 2020
Please read these Terms of Service (“Terms”, "ToS", or “Terms of Service”) carefully before using www.stafify.com or availing any Stafify Solutions, Products, or Services, and any other URL/links associated to this website (the "Solutions", “Services”, "Products" or "Work Products") operated by Stafify ("Company", “Us”, “We”, or “Our”).
THIS TERMS OF SERVICE AGREEMENT (this “Agreement,” “ToS,” or this “Terms of Service Agreement”) is made and entered into on the date (“Effective Date”) of your access, use, availment or purchase as specified and in accordance with the proposal, the Statement of Work ("SOW"), and this agreement, by and between STAFIFY BPO & DIGITAL AGENCY SOLUTIONS WORLDWIDE a Business Process Outsourcing & Digital Agency company, also known as the (“Company”) and YOU, also known as the (“Client”, "Visitor", "Guest" or "User").
Stafify is a BPO (Business Process Outsourcing) and a Digital Agency Solutions company providing Offshore Staff Leasing (Managed Operations), Project Based Outsourcing, Onshore Staff On-Demand and other related solutions, products and services through its E-Commerce Marketplace Platforms, Sales Channels and neither a Health Care Provider, Medical Practitioner, Manpower Agency, Educator, Advisor, Attorney-at law, Legal Counsel, Specialist nor alike.
The Company and Client are sometimes referred to collectively herein as the “Parties” and individually as a “Party.” This Agreement is made in pursuance of the Service or Project described herein, on the website, web app, mobile app or marketplace for services owned by Stafify BPO & Digital Agency Solutions Worldwide (“Stafify”) at the domain and subdomains of www.stafify.com (the “Site”). All capitalized terms not defined in this Agreement have the meanings given to such terms in the Terms of Service Agreement (“Terms of Service”) available at the Site, unless the context requires otherwise.
1. BACKGROUND, INITIAL OBLIGATIONS AND SCOPE OF WORK
1.1. SERVICES. “Services” means the services to be performed by the Company to the Client as set forth in each mutually agreed upon and executed Statement of Work (each a “Statement of Work”). If Company and Client have agreed to a written statement of work, written proposal, written project plan, or other written communication to specify in more detail the Project scope, required features or functionality, deliverables, milestones, development methods, resources, communications, training, acceptance, change control, payment, or other terms, such writing (“SOW”) is incorporated in and made a part of this Agreement. Each Statement of Work entered into by the parties shall reference this Agreement; provided, however, the contents of any Statement of Work shall take precedence over any conflicting provision in this Agreement to the extent necessary to resolve any such conflict. Company shall perform the specified Services during the term provided for in such Statement of Work.
1.2. RELATIONSHIP OF THE PARTIES. Company shall be deemed an independent contractor of Client. As between Company and Client, all persons retained by Company to perform Services for Client hereunder shall be employees or independent contractors of Company and shall not be employees or independent contractors of Client.
1.3. PLACE OF WORK. Client understands and agrees that all of the Services shall be performed online, offshore and remotely through Work from Home, Home Office or Office Based setup specifically a place outside the Client’s Location, using employees or independent contractors of the Company.
2. ENGAGEMENT, PERFORMANCE OF SERVICES AND CLIENT RESPONSIBILITIES.
2.1. PROJECT WORK PRODUCT. Client hereby engages Company to deliver the Work Product to Client, and Client will pay Company for the Project Work Product, in accordance with the terms and conditions of this Agreement and the Terms of Service. As used in this Agreement, the “Work Product” means any and all work products developed by the Company as required to complete the Project and delivered to the Client in the performance of the Project, as specified in the SOW, and this Agreement.
2.2. PERFORMANCE. Company will perform the services necessary to complete the Project in accordance with the procedures described on the Site, in a timely and professional manner, consistent with industry standards, at a location, place and time that Company deems appropriate, and all in accordance with the SOW, and this Agreement. The manner and means that Company chooses to complete the Project are in Company sole discretion and control. In completing the Project, the Company agrees to provide its own equipment, tools, and other materials at its own expense.
2.3. DURATION OF SERVICES. The duration of performance of services under this Agreement commences on the Effective Date and terminates on the Ending Date or Final Delivery Date set forth in, unless the Parties otherwise agree in a writing signed by both parties.
2.4. CHANGE CONTROL. “Company” will provide “Client” project management with status reporting on a regular basis. These reports will indicate the work activities performed, progress against project milestones, as well as any expenses incurred in the furtherance of this work to date.
Material deviations from the baseline scope and budget documented herein will be mutually reviewed and agreed by Company and Client. The following provides the process to be followed for any such material change to the SOW:
- A Change Request (“CR”) will be the vehicle for requesting a change to the SOW. The CR will describe the change, the rationale for the change, the impact on the implementation timeline, and the impact on the fees and payments. Both Company and Client may initiate a CR.
- The designated Project Manager of the requesting party will review the CR and determine whether to submit the CR to the other party.
- Both Project Managers will review the proposed CR and either approve for further investigation or reject. Company may specify additional charges for such investigation. If the investigation is authorized, the Project Managers will sign the estimation portion of the CR, which constitutes authorization for the investigative changes. The investigation will determine the effect that the implementation of the CR will have on fees and payments, schedule and other terms and conditions of the Agreement.
- A written CR must be signed by both Client and Company to authorize implementation of the CR.
2.5. SERVICE LEVEL AGREEMENT. Service Level Agreement for this project is subjected to the terms and service levels of the respective third party Background Technology used by the Company, including but not limited to: Domain Name Registration, Hosting, Customer or Content Management System and other 3rd party background technologies. Any other general after sales support request or inquiry can be sent through the Company’s official support email address email@example.com
2.6. RESTRICTIONS. In no event shall Stafify or its suppliers be liable for any damages (including, without limitation, damages for loss of data or profit, or due to business interruption,) arising out of the use or inability to use the materials on Stafify’s site, even if Stafify or a Stafify authorized representative has been notified orally or in writing of the possibility of such damage. Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to the Client.
2.7. COOPERATION. Client shall cooperate with Company by providing to Company such information and documents and access to Client's personnel as reasonably required by Company to perform the Services specified in a Statement of Work.
3. FEES AND PAYMENTS.
3.1. FEES (PROJECT BASED). Client will pay the Company the fee specified for the Project in accordance with the proposal, the SOW, the Terms of Service and this agreement. Payment will be made by Client to Company through the Site in accordance with the Stafify Payment Service and, if applicable, the Escrow Terms and Conditions, promptly upon each acceptance of the Project Work Product deliverable. Company will be responsible for all expenses incurred in performing services under this Agreement, except and only to the extent expressly provided in this Agreement, or the SOW.
3.2. SYSTEM MAINTENANCE FEE (PROJECT BASED). Client agrees and acknowledges to pay the Company and the 3rd party technologies for the monthly recurring system maintenance fee, if applicable, as stated, and in accordance with the proposal, the SOW (Statement of Work), the Terms of Service, and this agreement. Client’s failure to pay for the monthly recurring system maintenance fee will result in temporary service interruption or permanent service disconnection. Client further agrees and warrants the Company to act and process payments on their behalf as needed, to the third party background technologies used to develop and maintain the work product. In addition, actual System Maintenance Fee may change or be subjected to additional charges based on the existing or additional thirty party background technologies requested by the Client in order to maintain, perform and install any additional functionalities, feature requests, or other customization outside the initial project scope.
3.3. ADDITIONAL FEES OR CHARGES (PROJECT BASED). The Client hereby agrees and understands that additional charges applies for additional functionalities, feature requests, or other customization outside the project scope or after the Company delivers or transfers the ownership of the work product as stated, and in accordance with the proposal, the SOW (Statement of Work), the Terms of Service and this agreement.
3.4. AUTO DEBIT AUTHORIZATION (PROJECT BASED). The Client hereby authorize the Company to regularly schedule recurring fees or charges to the Client’s nominated Debit or Credit Card via the Online Recurring Payment Facility. Client will be charged the amount indicated in the Invoice, SOW (Statement of Work), the Terms of service, and this agreement. A receipt for each payment will be provided to you and the charge will appear on your credit card statement. Client agrees that no prior-notification will be provided unless the date or amount changes, in which case the Client will receive notice from the Company at least (30) days prior to the payment being collected.
The Client also understands that this authorization will remain in effect until the Client cancels it via the Online Recurring Payment Facility and in writing to the Company thirty (30) days prior to the intended date of cancellation or next billing date. The Client also certifies to be an authorized user of the Debit or Credit Card and will not dispute these scheduled transactions; so long as the transactions correspond to the terms indicated in this authorization clause.
3.5. FEES (OFFSHORE STAFF LEASING). The fees for Company's Services will be charged in U.S. dollars or equivalent to agreed local currency for local clients on the terms and at the rates specified in the applicable Statement of Work or proposal. Payment will be made by Client to Company through the Site in accordance with the Stafify Payment Service and, if applicable, the Escrow Terms and Conditions, promptly upon each acceptance of the Project Work Product deliverable. Company will be responsible for all expenses incurred in performing services under this Agreement, except and only to the extent expressly provided in this Agreement, or the SOW.
3.6. ADVANCE PAYMENT (OFFSHORE STAFF LEASING). Client shall pay the Company a one (1) Month advance including the remaining working days for that month if any, on the terms and at the rates specified in the applicable Statement of Work before commencing and signing the Client Services Agreement exclusive of any remittance charges, intermediary bank charges and/or other related charges.
3.7. SECURITY DEPOSIT (IF APPLICABLE) (OFFSHORE STAFF LEASING). Client shall also pay the Company a one (1) Month Security deposit as stipulated in the Statement of Work to secure Company’s severance pay upon contract expiration, or in case of any unforeseen circumstances from the Client such as bankruptcy, business closure, delayed payments and/or other related circumstances.
3.8. EXPENSES (OFFSHORE STAFF LEASING). Client shall reimburse Company for all actual and mutually accepted expenses that are authorized by Client in an applicable Statement of Work or otherwise agreed in writing in advance, reasonably incurred by Company and Company personnel in the course of performing the Services hereunder and evidenced by receipts provided to Client (“Expenses”).
3.9. INVOICES (OFFSHORE STAFF LEASING). Unless otherwise specified in the applicable Statement of Work, Company will invoice Client every 1st of the month as an advance payment for the next month’s Services and Expenses exclusive of any remittance charges, intermediary bank charges and/or other related charges. Invoices for Services rendered on a time and materials basis will indicate a breakdown and distribution of charges, by individual, at the rates specified in the applicable Statement of Work. Statements of Work for Services rendered on a fixed fee basis will indicate the basis upon which the fees are due and payable (e.g., milestones achieved or dates reached).
3.10. TAXES (OFFSHORE STAFF LEASING). In addition, Client shall be responsible for paying any applicable sales, use, excise, value added, or similar taxes, duties, or assessments imposed upon the Services rendered hereunder by any federal, state, local, or foreign government authority, exclusive of any taxes based upon Company's income or payroll.
3.11. PAYMENTS (OFFSHORE STAFF LEASING). Each invoice shall be due and payable to Company’s nominated bank account or in any money remittance facility at the address specified in the preamble to this Agreement, in U.S. dollars within three (3) calendar days after receipt of such invoice and any past due undisputed amounts shall thereafter accrue 5% interest, until paid, at the maximum interest rate permitted under applicable law.
3.12. NO OTHER CHARGES (OFFSHORE STAFF LEASING). Except as expressly set forth in this Agreement, including in an applicable Statement of Work, there shall be no charges, fees, expenses, costs or other amounts payable by Client in respect of the Services.
3.13. AUTO DEBIT AUTHORIZATION (OFFSHORE STAFF LEASING). The Client hereby authorize the Company to regularly schedule recurring fees or charges to the Client’s nominated Debit or Credit Card via the Online Recurring Payment Facility. Client will be charged the amount indicated in the Invoice, SOW (Statement of Work), the Terms of service, and this agreement. A receipt for each payment will be provided to you and the charge will appear on your credit card statement. Client agrees that no prior-notification will be provided unless the date or amount changes, in which case the Client will receive notice from the Company at least (30) days prior to the payment being collected.
The Client also understands that this authorization will remain in effect until the Client cancels it via the Online Recurring Payment Facility and in writing to the Company thirty (30) days prior to the intended date of cancellation. The Client also certifies to be an authorized user of the Debit or Credit Card and will not dispute these scheduled transactions; so long as the transactions correspond to the terms indicated in this authorization clause.
3.14. COMPENSATION OF COMPANY'S PERSONNEL (OFFSHORE STAFF LEASING). Company shall bear sole responsibility for the payment of compensation to its required personnel, independent contractors and employees. Company shall pay and report, for all personnel assigned to Client' work, any employment-related taxes or charges applicable to such personnel as independent contractors or employees of Company. Company shall bear sole responsibility for any health or disability insurance, retirement benefits, or other welfare or pension benefits, if any, to which such personnel may be entitled.
3.15. BUYOUT OF INDEPENDENT CONTRACTORS OR SUBCONTRACTORS (OFFSHORE STAFF LEASING). In the event that the Client expresses to buy out the Company’s Independent Contractor or Subcontractor, the Client must agree to pay the Company amounting $3,000 USD for each Independent Contractor or Subcontractor.
4. OWNERSHIP, ASSIGNMENT AND BACKGROUND TECHNOLOGY.
4.1. INVENTIONS AND INTELLECTUAL PROPERTY RIGHTS. As used in this Agreement, the term “Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and all Intellectual Property Rights therein. The term “Intellectual Property Rights” means all trade secrets, copyrights, trademarks, mask work rights, patents and other intellectual property rights recognized by the laws of any country.
4.2. BACKGROUND TECHNOLOGY. As used in this Agreement, the term “Background Technology” means all Inventions used or developed by the Company other than in the course of providing services to Client hereunder, and all Inventions acquired or licensed by Company that Company uses in performing services under this Agreement or incorporates into Work Product. Company will disclose any Background Technology which the Company proposes to use or incorporate. If Company discloses no Background Technology, Company warrants that it will not use Background Technology or incorporate it into Work Product provided pursuant thereto.
4.3. LICENSE TO BACKGROUND TECHNOLOGY. Company hereby automatically upon receipt of the full payment from Client, assigns and transfers to Client a non-exclusive, fully-paid, and world-wide right, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, exercise, assume and maintain any and all present or future license to use, subscriptions, rights and liabilities in the Background Technology incorporated or used in Work Product.
4.4. OWNERSHIP AND ASSIGNMENT OF WORK PRODUCT. Company agrees that upon receipt of the full payment from Client, any and all Work Product will be the property of Client. If Company has any rights to the Work Product that are not owned by Client upon creation or embodiment, Company hereby automatically upon receipt of full payment from Client assigns and transfers to such Client all rights, liabilities, titles and interests worldwide in and to such Work Product.
Moreover, after the Company successfully assigned and transferred the ownership of Work Product to the Client, the Client hereby automatically upon receipt of ownership of the Work Product from the Company assumes all rights, liabilities, titles and interests worldwide including paying the recurring subscriptions, if applicable, in order to retain access to any third party Background Technologies incorporated or used in the Work Product by the Company.
4.5. CLIENT PROPERTIES. As between Company and Client, Client will at all times be and remain the sole and exclusive owner of any documents or other tangible or intellectual property (“Client Properties”) provided by Client to Company under this Agreement. Including any softwares, designs, content, methodologies, techniques, processes, inventions, materials or other deliverables developed in whole or in part by Company or its independent contractors, or otherwise provided to Client in connection with this Agreement (and associated intellectual property rights) shall be the property of Client (“Client Properties”). As between Company and Client, Client shall at all times be and remain the sole and exclusive owner of the Client Properties.
5.1 GENERAL. In the performance of this Agreement or in contemplation thereof, each party and its employees, agents and independent contractors may have access to confidential information owned or controlled by the other party (hereinafter “Confidential Information”). All Confidential Information supplied by one party to the other which is clearly marked “Confidential” or which is derived there from shall remain the exclusive property of the party supplying the same. The receiving party shall use a reasonable degree of care, which in any event shall not be less than the same degree of care which the receiving party uses to protect its own Confidential Information, to keep, and have its employees, agents and independent contractors keep, confidential any and all Confidential Information. In keeping therewith, the recipient shall not copy, publish or disclose the Confidential Information to others, or authorize its employees, agents, independent contractors or anyone else to copy, publish or disclose it to others, without the disclosing party’s written approval, nor shall the receiving party make use of the Confidential Information except for the purposes of executing its obligations hereunder, and shall return the Confidential Information to the disclosing party at its request. The parties agree that the Company Properties and the Client Properties shall be deemed Confidential Information, as are all documentation, descriptions, and embodiments thereof.
“Confidential Information” includes, but is not limited to, all information related to both parties’ business and its actual or anticipated research and development, including without limitation to (i) trade secrets, background technologies, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques; (ii) information regarding products or plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, and customers; (iii) information regarding the skills and compensation of Company service providers, employees, contractors, and any other Company; (iv) the existence of any business discussions, negotiations, or agreements between Company and any third party; and (v) all such information related to any third party that is disclosed to Client or to Company during the course of business (“Third Party Information”).
5.2. LIMITATIONS ON CONFIDENTIALITY OBLIGATIONS. These non-disclosure obligations will not apply to Confidential Information which: (a) becomes generally known to the public by publication or by any means other than a breach of duty on the party of the recipient hereunder; (b) is information previously known to the recipient; (c) is information independently developed by or for the recipient; or (d) is information released by the owning party without restriction or released pursuant to a judicial or governmental decree; (e) Company own skill, knowledge, know-how, and experience. If required by order of any government authority, recipient may disclose to such authority the other party’s Confidential Information to the extent required by such order, provided that recipient shall first use its best efforts to obtain a protective order reasonably satisfactory to the disclosing party sufficient to maintain the confidentiality of such data, information, or materials.
6.1. INTELLECTUAL PROPERTY. If either party (each, as applicable, an “Indemnitee”) becomes subject to a claim against it that any portion of the Properties supplied by the other party (an “Indemnitor”) (i.e., the Client Properties in the case of Client as Indemnitor, and the Company Properties or Deliverables, in the case of Company as Indemnitor) infringes a proprietary right of a third party, the Indemnitor shall, with respect to and to the extent of the portion of the claim pertaining to such Property, at its sole expense, defend, indemnify and hold harmless the Indemnitee with respect to such claim. and all costs, expenses (including reasonable attorneys' fees), fines, penalties, deficiencies, losses, liabilities (including settlements and judgments) resulting from, arising from or relating to such claim. THIS SECTION SETS FORTH THE COMPLETE LIABILITY OF THE PARTIES WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
7. REPRESENTATIONS AND WARRANTIES
7.1. REPRESENTATIONS AND WARRANTIES OF CLIENT.
7.1.1. RIGHTS AND TITLES. Client hereby represents and warrants that it has and for the duration of this Agreement shall have all rights required for the performance of its obligations hereunder and has and for the duration of this Agreement shall have the authority and the legal right to enter into this Agreement.
7.2.1. PRIVACY LAWS. Client hereby represents and warrants that the information to be provided to Company in connection with the Services is not subject to any local, foreign laws specifically U.S. or U.K. privacy laws or regulations and can be processed outside the United States and United Kingdom without violation of any U.S. and U.K. privacy laws or regulations.
7.2. REPRESENTATIONS AND WARRANTIES OF COMPANY.
7.2.1. RIGHTS AND TITLES. Company hereby represents and warrants that it has and for the duration of this Agreement shall have all rights, titles or interests in the Company Properties and Deliverables required for the performance of its obligations hereunder and has and for the duration of this Agreement shall have the authority and the legal right to enter into this Agreement.
7.2.2. SERVICES. Company further represents and warrants that the Services provided under this Agreement will be of commercially reasonable quality in accordance with any specifications or requirements set forth in a Statement of Work and will be performed in a good and workmanlike manner and in accordance with industry standards. Any claim for breach of Company's warranties under this Section 7.2.2 must be made, by written notice to Company, within thirty (30) days following the date of completion of the Services for which the claim is made. Company shall have a thirty (30) day period following receipt of any such notice in which to cure a breach. Client’s sole and exclusive remedy for any breach of this Section 7.2.2 shall be for Company to repertory the Services that are the subject of the written notice.
7.2.3. COMPLIANCE WITH LAW. Company is and for the duration of this Agreement shall be in compliance with all federal, state, local and foreign laws, governmental regulations, rules and requirements and binding administrative and court orders (collectively “Laws”) applicable to Company, including all Laws applicable to its provision of the Services.
7.2.4. USE WARRANT. Permission is granted to provisionally download one copy of the materials (information) on Stafify’s web site for personal, non-commercial transitory viewing only. This is the grant of a license, not a transfer of title, and under this license, Client may not (i) Modify or copy the materials; (ii) Use the materials for any commercial purpose, or for any public display (commercial or non-commercial); (iii) Attempt to decompile or reverse engineer any software contained on Stafify’s website; (iv) Remove any copyright or other proprietary notations from the materials; or (v) transfer the materials to another person or “mirror” the materials on any other server.
7.2.5. DISCLAIMER. The materials on Stafify’s website are provided “as is”. Stafify makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights. Furthermore, Stafify does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its website or otherwise relating to such materials or on any sites linked to this site.
7.2.6. LINKS. Stafify has not reviewed all of the sites linked to its website and is not accountable for the contents of any such linked site. The inclusion of any link does not suggest endorsement by Stafify of the site. Use of any such linked website is at the user’s own risk.
7.2.7. REVISIONS AND ERRATA. The materials appearing on Stafify’s website could include technical, typographical, or photographic errors. Stafify does not warrant that any of the materials on its website is accurate, complete, or current. Stafify may make changes to the materials contained on its website at any time without notice. Stafify does not, however, make any commitment to update the materials.
7.3. NO OTHER WARRANTY. EXCEPT AS PROVIDED IN THIS AGREEMENT, (A) NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FROM A COURSE OF PERFORMANCE OR DEALING, TRADE USAGE, OR OF UNINTERRUPTED OPERATION WITHOUT ERROR, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND (B) WITHOUT LIMITING COMPANY'S OBLIGATION TO DELIVER THE SERVICES AND/OR DELIVERABLES SET FORTH IN A STATEMENT OF WORK, COMPANY MAKES NO GUARANTEES WITH REGARD TO THE RESULTS OBTAINED FROM THE OPERATION OR USE BY CLIENT OF THE CLIENT PROPERTIES OR COMPANY PROPERTIES. THE LIMITED WARRANTY SET FORTH IN THIS AGREEMENT IS MADE FOR THE BENEFIT OF CLIENT ONLY.
8. LIMITATION OF LIABILITY
8.1. COMPANY'S OR CLIENT'S LIABILITY FOR ANY REASON (EXCLUDING CLIENT'S LIABILITY FOR PAYMENT OF COMPANY'S SERVICES FEES) AND UPON ANY CAUSE OF ACTION, WHETHER SOUNDING IN TORT, CONTRACT, OR ANY OTHER LEGAL THEORY, SHALL AT ALL TIMES AND IN THE AGGREGATE BE LIMITED TO THE AMOUNTS ACTUALLY PAID BY CLIENT TO COMPANY UNDER THE APPLICABLE STATEMENT OF WORK DURING THE PREVIOUS SIX (6) MONTHS.
8.2. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3. THE FOREGOING LIMITATIONS OF LIABILITY (INCLUDING THE DAMAGES CAP AND THE EXCLUSIONS SET FORTH IN THE IMMEDIATELY PRECEDING TWO PARAGRAPHS) SHALL NOT APPLY TO THE INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, A BREACH OF THE CONFIDENTIALITY AGREEMENT, OR DAMAGES CAUSED BY GROSS NEGLIGENCE, RECKLESS CONDUCT OR WILLFUL MISCONDUCT.
9. TERM AND TERMINATION
9.1. TERM. The term of this Agreement shall commence on the Effective Date based on your access, use, availment or purchase as specified and in accordance with the proposal, the Statement of Work ("SOW"), and this agreement and, unless earlier terminated in accordance with this Section 9, shall continue through the end of the last extant Statement of Work.
9.2. TERMINATION. This Agreement may be terminated (a) by either party if the other party defaults in the performance of any of its material obligations (or repeatedly defaults in the performance of any of its other obligations) under this Agreement (i) upon at least thirty (30) days' notice to the breaching party if such default is capable of being cured and the breaching party does not cure such default within thirty (30) days from the non-breaching party's default notice or (ii) immediately upon notice to the breaching party if such default is not capable of being cured, and (iii) by either party upon notice received (90) days prior to the end of the then current term; provided that this Agreement shall not be terminated under this clause (b) with respect to all outstanding Statements of Work until such Statements of Work expire or are completed or terminated in accordance with their terms, including any notice requirements provided therein. Client's obligation to make payment for Services performed by Company or its contractors or subcontractors prior to termination shall survive any termination of this Agreement.
9.3. TERMINATION OF WEBSITE/WEB-APP/MOBILE-APP OR OTHER PLATFORM'S USAGE. The license shall automatically terminate if the Client violate any of these restrictions and may be terminated by Stafify at any time. Upon terminating the Client viewing of these materials or upon the termination of this license, the Client must destroy any downloaded materials in possession – whether in electronic or printed format.
9.3 RETURN OF CLIENT PROPERTIES. Upon termination of the Agreement, the expiration or termination of a Statement of Work (a) any and all licenses granted to Company to perform Services under such Statement of Work, shall automatically terminate, and (b) Company shall deliver to Client, in the manner requested by Client all of the Client Properties (including all Deliverables, whether completed or in-progress) relating to such Statement of Work in the form then in use.
10. GENERAL PROVISIONS.
10.1. COMPLETE AGREEMENT. This Agreement, including any Statements of Work hereunder, is the complete and exclusive statement of the agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior proposals, understandings, and agreements, whether oral or written, between the parties with respect to the subject matter hereof. This Agreement may not be modified except by a written instrument executed by authorized representatives of the parties. The pre-printed terms and conditions of any purchase order or other ordering document issued by either party in connection with this Agreement shall not be binding on the other party and shall not be deemed to modify this Agreement.
10.2. NO WAIVER. No failure to exercise, and no delay in exercising, on the part of either party, any right, power or privilege hereunder will operate as a waiver thereof, nor will any party's exercise of any right, power or privilege hereunder preclude further exercise of the same right or the exercise of any other right hereunder.
10.3. ENFORCEABILITY. If any part of this Agreement shall be adjudged by any court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby and shall be enforced to the maximum extent permitted by applicable law.
10.4. FORCE MAJEURE. Either party shall be excused from performance and shall not be liable for any delay in whole or in part, to the extent caused by the occurrence of any events beyond the reasonable control either of the excused party or its subcontractors or suppliers, for as long as such event continues and the excused party continues to use its best efforts to recommence performance whenever and to whatever extent possible without delay, including through the use of alternate sources, workaround plans or other means.
10.5. NOTICES. Any notice required or permitted hereunder to the parties hereto will be deemed to have been duly given if in formal email and/or in writing to the email or physical address of the receiving party as set forth on the initial page hereof or such other address as may be specified by such party in a notice delivered to the other party in accordance with this Section and delivered by: (i) corporate or business email, certified mail, return receipt requested, postage prepaid; (ii) nationally recognized overnight courier, delivery charges prepaid; or (iii) by hand delivery with signed receipt. Any notice shall be deemed delivered: (a) on the fifth (5th) business day following deposit of such notice with the Postal Service if notice is given in accordance with (i), above; (b) on the second (2nd) business day following deposit of such notice with the courier if notice is given in accordance with (ii), above; or (c) on the date of actual delivery if notice is given in accordance with (iii), above.
10.6. GOVERNING LAW, JURISDICTION AND VENUE. This Agreement shall be deemed to have been made in the City of Olongapo, Philippines, and shall be construed pursuant to the Laws of the Republic of the Philippines, excluding its choice of law principles.
10.7. ASSIGNMENT. Neither party may assign or delegate any or all of its rights (other than the right to receive payments) or its duties or obligations hereunder without the consent of the other party, which consent shall not be unreasonably withheld; provided, however, that either party may assign this Agreement, without the need to obtain consent of the other party, to a successor in interest to substantially all of the business of that party to which this Agreement relates. An assignee of either party authorized hereunder shall be bound by the terms of this Agreement and shall have all of the rights and obligations of the assigning party set forth in this Agreement.
10.8. SUBCONTRACTING. Company shall have the right to subcontract some or all of the Services specified in a Statement of Work to an individual or entity offshore or located outside the Client’s Location. No subcontracting shall release Company from its responsibility for its obligations under this Agreement. Company shall be responsible for the work and activities of each of its contractors, including compliance with the terms of this Agreement. Company shall be responsible for all payments to its independent contractors. Company shall enter into confidentiality agreements with any independent contractors with provisions at least as restrictive as the provisions of Section 5 of this Agreement.
10.9. EXPORT. Company shall not knowingly export or re-export any personal computer system, part, technical data or sub-elements under this Agreement, directly or indirectly, to any destinations prohibited by the Philippine Government. The term “technical data” in this context, means such data as is defined as technical data by applicable Philippines export regulations.
10.10. SURVIVAL. Each of the provisions of this Agreement shall remain in full force and effect through the End Date of this Agreement, and the terms which by their nature should survive, shall survive such Ending Date. The “Ending Date” shall be the effective date of the expiration or termination of this Agreement.
This Terms of Service ("ToS") agreement will be in effect from the EFFECTIVE DATE up to the final DELIVERY DATE as specified and in accordance with the proposal, the Statement of Work ("SOW"), and this agreement, and may be updated at any time. Either party can terminate this agreement with (90) days written notice without prejudice, or upon failure to perform the said responsibilities stated above.