Master Service Agreement – Orbis Inc

This online document is separated into 2 independent parts:

Part 1 – Permanent Placement Services;

Part 2 – Contract / Temporary Assignment Services;

Also included are:

Part 2: Exhibit A – Example Statement of Work

Part 1 – Permanent Placement Services

Key Commercial Terms (“Terms Sheet”)

1.Definitions

• “Agreement” means the completed cover page, along with this Part 1, and any Part 2 which may be executed between the parties, each as amended.
• “Client” means the person or entity identified in the cover page of this Agreement.
• “Client Group” means Client, along with its then current members, directors, affiliates, and subsidiaries, along with any Third Party to whom Client provides the results of the Services, including sharing the details of any Candidate. For the avoidance of doubt, any Third Party will be considered a part of Client Group if any of its affiliates or subsidiaries would be considered a part of Client Group.
• “Candidate” means the person Introduced by ORBIS to Client including, but not limited to, any member, employee, or officer of Candidate if Candidate is a business, and including any employee or officer of ORBIS.
• “Introduction” means any event in which information about an individual is passed to Client by ORBIS, as well as any interview of a Candidate by Client pursuant to ORBIS’s passing of information to Client. For the avoidance of doubt any use of “Introduce” will refer to making an Introduction, and any use of “Introduced” with refer to situations where an Introduction has already been made.
• “Party” or “Parties” means one or both of Client and ORBIS respectively.
• “Placement” means the hiring or employment of a Candidate on any basis by Client Group, including permanent, temporary, full time, part time, and contingent, and regardless of whether the Candidate is hired as an employee, member, contractor, or sub-contractor of any degree.
• “Placement Fee” means the fee due to ORBIS by Client in the event of a Placement, as specified in the Terms Sheet.
• “Remuneration” means the compensation owed to a Candidate as part of the first 12 months of a Placement, as further specified in the Terms Sheet.
• “Search” means the identification, recruiting, and Introduction of Candidates to Client by ORBIS, intended to result in Placements.
• “Services” means, with respect to this Part 1, conduct of Searches by ORBIS. Services may also include certain limited screenings of Candidates as requested by Client.
• “Terms Sheet” means the table beginning on the first page of this Part 1, titled Key Commercial Terms.
• “Third Party” means any person, whether corporate or individual, who is not a Party under this Agreement

2.Acceptance, Term, and Precedence

• This Agreement begins on its effective date, as indicated in the cover letter. Alternatively, if Client has been provided a copy of this Agreement but failed to execute it prior to the date on which the first Placement occurs, then Client will be deemed to have accepted this Part 1, or the most recent version of this Part 1 offered to Client by ORBIS, with the effective date being the date of the Placement.
• This Agreement will continue in full force and effect until terminated by either Party according to the terms of the Agreement.
• In the event of a conflict between the terms of Part 1 and Part 2 of this Agreement, the provisions of this Part 1 will control with regard to the Services described herein.
• IF Retained: Upon Client’s request of any new search by ORBIS, Client will owe a payment equal to 1/3 of the estimated Placement Fee based on the estimated Remuneration. Then, upon Client’s acceptance of a shortlist of candidates, Client will owe another payment of 1/3 of the estimated Placement Fee. Finally, upon Placement, Client will owe the remaining amount of the Placement Fee, calculated as the actual Placement Fee, reduced by the amount of the two payments already made for such Search.]

3.Services and Fees

• ORBIS will perform Services following any request for Search from Client. As part of Client’s request, Client agrees to provide to ORBIS sufficient details as would be reasonably required for ORBIS to perform the Services, including any qualifications required by law for a Candidate to perform the work contemplated by in the Search as well as any information reasonably requested by ORBIS.
• ORBIS will use reasonable efforts, as part of the Services, to only Introduce as Candidates those individuals who, to the best of ORBIS’s knowledge, meet the qualifications and screening requirements indicated by Client. The foregoing sentence notwithstanding, Client shall have the sole responsibility for satisfying itself as to the suitability of any Candidate prior to beginning a Placement. Client acknowledges and agrees that ORBIS has no responsibility for information outside of its control and may not be held liable for hiring decisions made by Client.
• Conditional Fees & Adjustments:
  1. Where the Placement Fee cannot be calculated in its normal fashion because Client has refused to disclose the Remuneration, the Placement Fee will be based on the vacancy for which the Candidate was most recently submitted to Client, or where no specific vacancy can be referenced or where no salary details were included, based on the median local salary for the role for which Candidate was Placed.
  2. Where Client has made an offer for a Placement to a Candidate, and the Candidate has accepted in writing but has not had their first day of work under the Placement yet, if the Client cancels said offer then Client will owe a cancellation fee to ORBIS equal to 5% of the Remuneration.
• Client Agrees that in addition to any fees arising under this Agreement, ORBIS may include on its invoices an amount corresponding to any applicable sales tax (if any).
• If, no more than 7 business days following the first Introduction of a Candidate, Client notifies ORBIS that Candidate was contacted by Client within the past 3 months, and if Client provides proof of this claim as reasonably requested by ORBIS, then no Placement Fee will be owed to ORBIS in the event of a Placement of that Candidate and ORBIS will provide no further Services with regards to such Candidate.

4.Relationship of the Parties & Confidentiality

• At all times during this Agreement and any Services hereunder, the Parties intend to do business as independent contractors. Nothing in this Agreement should be deemed or interpreted to create a relationship of employment, agency, joint venture, or partnership between the Parties. No agent, director, employee, subcontractor, or representative of either Party will have the power to bind the other Party, nor the right to participate in any employee benefits plan of any kind sponsored by the other Party.
• For the avoidance of doubt, at no point during the performance of Services or during a Placement under this Part 1 is any Candidate an agent, employee, or representative of ORBIS in any form. To any extent required for a Placement, Client accepts full and sole responsibility for obtaining any work permits, ordering any medical or background checks, and ensuring that the work performed by, and payment given to the Candidate during the Placement are in compliance with applicable law.
• Each Party will disclose certain sensitive, proprietary, privileged, or otherwise confidential information (“Confidential Information”) in the course of performance under this Agreement (“Disclosing Party”) to another Party under this Agreement (“Receiving Party”).
• Receiving Party agrees to hold all Confidential Information in the strictest confidence throughout the duration of this Agreement, and indefinitely thereafter. Receiving Party will use the Confidential Information only for the purpose of performing its obligations under this Agreement, and will protect all Confidential Information from unauthorized use or access with the same or better safeguards and precautions as Receiving Party uses to safeguard its own sensitive and confidential information but at all times at no less than a reasonable level of security.
• For the avoidance of doubt, information may be considered confidential regardless of whether it is marked as such and regardless of the form, format, or method of disclosure. Confidential Information will not include any information which:
  1. Is already widely and generally known to the public at the time of disclosure, or becomes widely and generally known through no fault of Receiving Party;
  2. Is independently developed or discovered by Receiving Party without any reliance on or use of the Confidential Information for such purpose; or
  3. Was already in the possession of the Receiving Party at the time of disclosure, which prior possession Receiving Party can evidence to the reasonable satisfaction of Disclosing Party.
• Any disclosure of Confidential Information by Receiving Party which is made to a court or regulatory agency with jurisdiction over Receiving Party in compliance with a binding order will be excused, provided that Receiving party must notify Disclosing Party as soon as practicable after receiving such order, and render all aid and assistance to Disclosing Party in seeking a protective order to limit the amount of Confidential Information disclosed and the breadth of parties privy to the disclosure.

5.Liability, Indemnity, and Default

• Neither Party is liable to the other for any indirect, consequential, special, or punitive damages including, but not limited to, loss to profits, revenue, goodwill, anticipated savings, or opportunities, nor for any claims by third parties where any of the preceding arise out of this Part 1, the Services contemplated herein, or the relationships created hereby. The foregoing waiver of consequential damages shall apply regardless of whether the Party knew or should have known of the possibility of damages ahead of time, and regardless of whether specifically warned of such liability by the claiming Party.
• The foregoing shall limit the liability of any Party as to any personal injury, death, or fraud only to the extent allowable under applicable law.
• Except as otherwise required by applicable law, the maximum liability of ORBIS arising out of or in connection with this Part 1 shall not exceed the total value of the Services under this Part 1 actually paid for by Client in the 12 months immediately preceding the incident giving rise to the liability.
• Each Party agrees to indemnify, defend, and hold harmless the other Party from any form of claim, action, loss, suit, or administrative proceeding arising as a result of the indemnifying Party’s breach of the intellectual property rights of any third party, including the personal data rights and data protection rights of any individual. In the case of Client, the foregoing indemnity will also apply with respect to breaches made by any member of Client Group.
• In the event that Client fails to timely pay any invoice under this Agreement, Client will be considered in default and ORBIS reserves the right to, at its sole discretion, take any of the following action: (i) suspend Services to Client until Client is no longer in default; (ii) charge interest to Client on overdue amounts at the rate of five (5) percentage points above the basic interest rate, or the maximum amount allowed under applicable law if less; and (iii) collect against Client reasonable attorney’s fees and costs of court incurred by ORBIS in the course of collecting overdue amounts.

6.Termination

• Either Party may terminate this Part 1 for convenience on 30 days prior written notice to the other Party.
• Either Party may terminate this Agreement or this Part 1 for breach on immediate notice if the breaching party has been notified in writing of its breach, and provided at least 15 days following that notice to cure the breach.
• ORBIS’s right to collect Placement Fees against Candidates who are Introduced prior to the termination of this Part 1 will survive any termination hereof, as will the provisions of Sections 4, 6, and 8.

7.Non-Solicitation

• Client agrees to not approach any staff member of ORBIS with the intent of hiring that individual or otherwise enticing them away from ORBIS. This clause will survive any termination of this Agreement for a period of 12 months, and to any former member of ORBIS staff for 12 months following that individual’s departure from ORBIS. In the event of a breach of this clause Client shall pay a Placement Fee to ORBIS calculated at 10 percentage points higher than as given in the Terms Sheet. For the avoidance of doubt, no guarantee of any kind will apply to such fee.

8.General

• This Agreement will be governed by the laws of the State of New York, without regards to the conflicts of laws principles of any jurisdiction. All actions and proceedings arising out of or relating to this Agreement, or the relationships created hereby, must be heard and determined through binding arbitration administered by the American Arbitration Association under the applicable rules and mediation procedures thereof and any judgement rendered in arbitration may be entered in any court having jurisdiction over the parties. The location of arbitration, as well as the number and identity of the arbiters, will be determined according to the rules of the American Arbitration Association, and issues of arbitrability will be decided by those arbiter(s). Notwithstanding the foregoing sentences, a claim or a series of related claims with respect to which injunctive relief is sought may be heard in the jurisdiction where it is alleged that the primary activity that is the subject of such claim(s) occurred.
• Parties acknowledge that at various times throughout the duration of this Agreement and during the performance of the Services each Party may be a data controller and/or data processor under applicable data protection regulations such as the General Data Protection Regulations of the EU and the California Consumer Protections Act. Parties each agree to comply with the requirements of all applicable data protection legislation at all times during this Agreement and the performance of the Services. Parties further agree to cooperate in complying with any data reporting and data removal requests relating to Candidates.
• Except as otherwise provided in this Agreement, neither Party will voluntarily, or by operation of law, assign or otherwise transfer its obligations under this Agreement without the prior written consent of the other Party. Any purported assignment or transfer in violation of this section is void.
• It is agreed that there is no representation, warranty, collateral agreement, or condition affecting this Agreement except as expressly provided in this Agreement, and that this Agreement supersedes any and all prior representations, understandings, or agreements between the Parties relating to the subject matter contained herein.
• No amendment to or modification of this Agreement shall be effective unless it is in writing and signed by each of the Parties.
• If any of the provisions of this Agreement is held to be invalid or unenforceable in part, such provision shall be deemed immediately amended so as to preserve the intended rights, warranties, and obligations of each Party to the maximum extent allowable under applicable law, and all other provisions of this Agreement will continue in full force and effect in their unaltered state. To the extent any provisions is found invalid in its entirety, such provision shall be deemed struck from this Agreement and the remaining provisions of this Agreement shall continue in full force and effect in their unaltered state.
• The headings of the sections and subsections of this Agreement are intended for the convenience of reference only and shall not be construed as altering the meaning, scope, or applicability of any portion of this Agreement.

Part 2 – Contract / Temporary Assignment Services

1.Definitions

• “Agreement” means the completed cover page, along with this Part 2, and any Part 1 which may be executed between the parties as amended.
• “Assignment” means the arrangement for Personnel who are engaged by Orbis either directly or via a third party as W2 employees to work at the direction, supervision, and control of Client, and for Personnel who are Independent Contractors of ORBIS to work on tasks as designated by Client from time to time.
• “Assignment Fees” means the fees owed by Client to ORBIS in payment for the Services, calculated on an hourly basis as laid out for a given Assignment in the corresponding Statement of Work.
• “Client” means the person or entity identified in the cover page of this Agreement.
• “Client Group” means Client, along with its then current members, directors, affiliates, subsidiaries, and customers, including any end-user, end-client, or recipient of the Services.
• “Contract Vacancy” means a role which Client has identified to ORBIS as part of a request for Services.
• “Conversion Fee” means an amount owed by Client in connection with a Placement.
• “Guaranteed Salary” means, with respect to a given Assignment, the minimum weekly charge for that Assignment (if any), as established in the Statement of Work.
• “Introduction” means any event in which information about an individual is passed to Client by ORBIS, as well as any interview of Prospective Personnel by Client. For the avoidance of doubt any use of “Introduce” will refer to making an Introduction, and any use of “Introduced” will refer to situations where an Introduction has already been made.
• “Party” or “Parties” means one or both of Client and ORBIS respectively.
• “Personnel” means individuals who are performing work under an Assignment, who during the term of an Assignment shall be either employees (engaged by Orbis directly or through a third party acting as an Employer of Record), independent contractors, or subcontractors of ORBIS.
• “Placement” means, with respect to this Part 2, the hiring or employment of a Prospective Personnel or Personnel on any basis by Client Group other than through an Assignment, including permanent, temporary, full time, part time, and contingent, and regardless of whether the Prospective Personnel is hired as an employee, member, contractor, or sub-contractor of any degree.
• “Prospective Personnel” means an individual who has been Introduced to Client who is not yet considered Personnel.
• “Services” means, with respect to this Part 2, the Introduction of Prospective Personnel and the provision of Personnel to Client as part of an Assignment, including the recruiting, screening, hiring or contracting, payment, and fulfillment of all statutory or contractual duties of employment or engagement to the Personnel throughout the duration of the Assignment, including but not limited to the payment of wages, withholding and remittance of employment related taxes, provision of statutory employee benefits, and provision of worker’s compensation insurance coverage.
• “Statement of Work” means the document specifying the agreed details of an Assignment, including at least the title of the Contract Vacancy, the name of Personnel assigned, the location where the Personnel will work while on Assignment (which may be listed as “remote” when no specific location is required by Client), the start date of the Assignment, the anticipated end date of the Assignment, the Assignment Fees due for the assignment, and the Guaranteed Salary (if any).
• “Work Product” means the completion of tasks, duties, and projects by Personnel as reasonably assigned by Client from time to time, as well as any tangible or intellectual property produced thereby.

2.Acceptance, Term, and Precedence

• This Agreement begins on its effective date, as indicated in the cover letter. Alternatively, if Client has been provided a copy of this Agreement but failed to execute it prior to the date on which the first Assignment begins or the Client signs the first timesheet for any Personnel, then Client will be deemed to have accepted this Part 2, or the most recent version of this Part 2 offered to Client by ORBIS, with the effective date being the date of the Assignment.
• This Agreement will continue in full force and effect until terminated by either Party according to the terms of the Agreement.
• In the event of a conflict between the terms of Part 1 and Part 2 of this Agreement, the provisions of this Part 2 will control with regard to the Services described herein.

3.Services and Fees

• ORBIS will perform Services following a notice of Contract Vacancy from Client. As part of Client’s notice of Contract Vacancy, Client agrees to provide to ORBIS sufficient details as would be reasonably required for ORBIS to perform the Services, including any qualifications required by law for Prospective Personnel to perform the work contemplated by the intended Assignment as well as any information reasonably requested by ORBIS with respect to any Contract Vacancy.
• ORBIS will use reasonable efforts, as part of the Services, to only Introduce as Prospective Personnel those individuals who, to the best of ORBIS’s knowledge, meet the qualifications and screening requirements indicated by Client for an Assignment. The foregoing sentence notwithstanding, Client shall have the sole responsibility for satisfying itself as to the suitability of any Prospective Personnel prior to approving an Assignment. Client acknowledges and agrees that ORBIS has no responsibility for information outside of its control and may not be held liable for the misrepresentations of any Prospective Personnel which ORBIS could not have discovered through reasonable and customary due diligence in the provision of the Services.
• In exchange for the Services, Client will pay ORBIS’s invoices for Assignment Fees no later than 30 days from the date of receipt of the invoice. ORBIS will ensure that all invoices for Assignment Fees are supported with documentation showing the hours worked by the Personnel covered by the invoice and signed by an approved manager or representative of Client. Client agrees that a properly signed time sheet, or electronically approved time record, will be conclusive evidence of the billable time worked by Personnel on Assignment for the covered period. Client agrees that no time record approval may be refused or delayed except to the extent required to correct the reported hours to accurately reflect the number of hours actually worked by the Personnel on Assignment for the covered period. Client further agrees that no invoice may be rejected, disputed, or delayed except to the extent required to correct the number of hours reflected in the invoice or the calculation of the total Assignment Fees due therefrom.
• Where a Statement of Work has specified a Guaranteed Salary for an Assignment, and the total Assignment Fees for a given workweek are less than such Guaranteed Salary, then the Guaranteed Salary will be billed for that workweek in place of the Assignment Fees. All Guaranteed Salaries correspond to minimum amounts which ORBIS is, in ORBIS’s reasonable opinion, required to pay to Personnel under the Fair Labor Standards Act (as amended from time to time). For the avoidance of doubt, under no circumstances will both the Guaranteed Salary and the Assignment Fees be billed for the same workweek.
• Client agrees that the in addition to the Assignment Fees or any Guaranteed Salary, ORBIS may include on its invoices amounts corresponding to sick leave or paid time off as required by statute or policy for Personnel who are on Assignment, as well as applicable sales tax (if any). ORBIS’s policy is to provide the greater of the statutory minimum paid time off and sick leave, or 3 days flexible paid time off per assignment year where greater.
• In the event that Client has a valid dispute with any invoice, Client must notify ORBIS in writing no later than the payment deadline for such invoice. Such writing must identify the disputed invoice, the amount in dispute, and the reason for dispute together with any supporting evidence for the dispute. Client agrees that in the case of an invoice dispute, Client will pay all undisputed portions of the invoice and all undisputed invoices promptly, and that Parties will negotiate promptly and in good faith to resolve the dispute. Once the dispute is resolved, any resulting payments or adjustments will be due upon the latter of (a) 5 business days from the date on which the dispute has been resolved between the parties, or (b) the due date of the invoice in dispute.

4.Client Obligations

• In the event that Client designates a specific work location for an Assignment to be performed, Client represents and warrants that such location is and will be maintained in accordance with industry standard safety policies and procedures, in accordance with applicable workplace safety regulations, and in no case at less than a reasonable degree of safety. If Client maintains a worker policy related to Covid-19 safety, Client shall either, (i) provide a copy of such policy to ORBIS which ORBIS will send to Personnel without modification ahead of beginning any Assignment, or (ii) provide a copy directly to Personnel. To any extent that ORBIS’s worker’s compensation insurance policy fails to cover costs arising as result of a workplace injury suffered by Personnel while on Assignment at a Client controlled work site, Client agrees to indemnify and hold ORBIS harmless from all costs, damages, and fees (including reasonable attorney’s fees and costs of court) resulting therefrom.
• Client represents and warrants that it possesses all licenses and registrations required to conduct its business, and in particular that it has not and will not request or maintain an Assignment the work from which Client is not legally allowed to utilize. Client further agrees that it shall not direct, coerce, or request any Personnel to perform any action or omission, whether on Assignment or otherwise, which constitutes a violation of applicable law or regulations, including but not limited to those laws and regulations related to safety, anti-bribery, anti-corruption, employment discrimination, and export control.

5.Relationship of the Parties, Confidentiality, and Work Product

• At all times during this Agreement and any Services hereunder, the Parties intend to do business as independent contractors. Nothing in this Agreement should be deemed or interpreted to create a relationship of employment, agency, joint venture, or partnership between the Parties. No agent, director, employee, subcontractor, or representative of either Party (including Personnel) will have the power to bind the other Party, nor the right to participate in any employee benefits plan of any kind sponsored by the other Party.
• Each Party will disclose certain sensitive, proprietary, privileged, or otherwise confidential information (“Confidential Information”) in the course of performance under this Agreement (“Disclosing Party”) to another Party under this Agreement (“Receiving Party”).
• Receiving Party agrees to hold all Confidential Information in the strictest confidence throughout the duration of this Agreement, and indefinitely thereafter. Receiving Party will use the Confidential Information only for the purpose of performing its obligations under this Agreement, and will protect all Confidential Information from unauthorized use or access with the same or better safeguards and precautions as Receiving Party uses to safeguard its own sensitive and confidential information but at all times at no less than a reasonable level of security.
• For the avoidance of doubt, information may be considered confidential regardless of whether it is marked as such and regardless of the form, format, or method of disclosure. Confidential Information will not include any information which:
  1. Is already widely and generally known to the public at the time of disclosure, or becomes widely and generally known through no fault of Receiving Party;
  2. Is independently developed or discovered by Receiving Party without any reliance on or use of the Confidential Information for such purpose; or
  3. Was already in the possession of the Receiving Party at the time of disclosure, which prior possession Receiving Party can evidence to the reasonable satisfaction of Disclosing Party.
• Any disclosure of Confidential Information by Receiving Party which is made to a court or regulatory agency with jurisdiction over Receiving Party in compliance with a binding order will be excused, provided that Receiving party must notify Disclosing Party as soon as practicable after receiving such order, and render all aid and assistance to Disclosing Party in seeking a protective order to limit the amount of Confidential Information disclosed and the breadth of parties privy to the disclosure.
• Parties agree that Client will be the sole owner of any Work Product. All Work Product is performed or created for the sole benefit of Client and, to the fullest extent possible under the law, is work made for hire. ORBIS hereby assigns, and will require all Personnel to assign, any and all right, title, or other interest in the Work Product of any kind to Client. Where applicable law prevents an assignment of such Work Product, ORBIS hereby grants, and will require all Personnel to grant, an indefinite, unlimited, and transferrable license to Client to use, trade, sell, and dispose of all Work Product at Client’s sole discretion. ORBIS will, upon Client’s request, take all reasonable steps necessary to effectuate the assignments and grants given under this provision.

6.Conversion

• • If Client Group directly or indirectly Places a Prospective Personnel other than through an Assignment, Client agrees to pay a Placement Fee as it would be calculated under the meaning of Part 1 of this Agreement, or if no Part 1 has been agreed between the parties, then at the rate of 25% of the hired worker’s first years’ total compensation including but not limited to wages, singing bonuses, and estimated commissions. For the avoidance of doubt, the guarantees set out in Part 1 of this Agreement will only apply to such a hiring if a Part 1 has been agreed between the Parties prior to the date of Placement, and all other conditions and requirements set out in Part 1 for such guarantees have been met.
  • If Client Group directly or indirectly Places one of the Personnel other than through an Assignment within 1 year of the latter of Personnel’s most recent Introduction or Personnel’s last working day on Assignment, Client agrees to pay a Conversion Fee. Unless otherwise agreed in the relevant Statement of Work, the Conversion Fee will be calculated as a 25% of the hired worker’s first year’s total compensation including but not limited to wages, signing bonuses, and estimated commissions.

7.Non-Solicitation

• Client agrees to not approach any staff member of ORBIS with the intent of hiring that individual or otherwise enticing them away from ORBIS. This clause will survive any termination of this Agreement for a period of 12 months, and to any former member of ORBIS staff for 12 months following that individual’s departure from ORBIS. In the event of a breach of this clause Client shall pay a Placement Fee to ORBIS calculated at 10 percentage points higher than as given in the Terms Sheet. For the avoidance of doubt, no guarantee of any kind will apply to such fee.

8.Termination

• Client may, at any time, terminate or suspend an Assignment for any reason or for no reason, and may request the removal of any Personnel from Assignment and from any Client controlled work site at any time for any reason or for no reason. If ORBIS is under a statutory obligation to give notice of termination, and Client’s short notice or lack of notice thereby results in costs for ORBIS in complying with such statutory obligation, Client will be invoiced for such amounts at cost.
• Either Party may terminate this Part 2 for convenience on 30 days prior written notice to the other Party. Client acknowledges and agrees that informing Personnel of the termination of an Assignment, a Statement of Work, or this Agreement does not constitute giving such notice to ORBIS.
• ORBIS’s right to collect Assignment Fees and Guaranteed Salary for time worked prior to the termination of any Assignment, Statement of Work, or this Part 2 of the Agreement will survive any such termination.

9.Liability, Indemnity, and Default

• Neither Party is liable to the other for any indirect, consequential, special, or punitive damages including, but not limited to, loss to profits, revenue, goodwill, anticipated savings, or opportunities where any of the preceding arise out of this Part 2, the Services contemplated herein, or the relationships created hereby. The foregoing waiver of consequential damages shall apply regardless of whether the Party knew or should have known of the possibility of damages ahead of time, and regardless of whether specifically warned of such liability by the claiming Party.
• The foregoing shall limit the liability of any Party as to any personal injury, death, or fraud only to the extent allowable under applicable law.
• Except as otherwise required by applicable law, the maximum liability of ORBIS arising out of or in connection with this Part 2 shall not exceed the total value of the Services under this Part 2 actually paid for by Client in the 12 months immediately preceding the incident giving rise to the liability.
• Each Party agrees to indemnify, defend, and hold harmless the other Party from any form of claim, action, loss, suit, or administrative proceeding arising as a result of the indemnifying Party’s breach of the intellectual property rights of any third party, including the personal data rights and data protection rights of any individual. In the case of Client, the foregoing indemnity will also apply with respect to breaches made by any member of Client Group.
• In the event that Client fails to timely pay any invoice under this Agreement, Client will be considered in default and ORBIS reserves the right to, at its sole discretion, take any of the following action: (i) suspend Services to Client until Client is no longer in default; (ii) charge interest to Client on overdue amounts at the rate of five (5) percentage points above the basic interest rate, or the maximum amount allowed under applicable law if less; and (iii) collect against Client reasonable attorney’s fees and costs of court incurred by ORBIS in the course of collecting overdue amounts.
• Client acknowledges that in the course of providing the Services, ORBIS will have no way to verify, guarantee, or otherwise assure that the Work Product of Personnel while working on Assignment conforms to any form of Client specifications, requirements, or schedules, and Client agrees that its sole remedy for unsatisfactory performance by Personnel will be the termination of Assignment or removal of the unsatisfactory Personnel from the Assignment as provided for in Section 6.1 of this Part 2. All work produced by Personnel while on Assignment will be for the sole benefit of Client and all rights in physical and intellectual property produced therefrom will vest solely in Client.

10.Miscellaneous

• This Agreement will be governed by the laws of the State of New York, without regards to the conflicts of laws principles of any jurisdiction. All actions and proceedings arising out of or relating to this Agreement or the relationships created hereby must be heard and determined through binding arbitration administered by the American Arbitration Association under the applicable rules and mediation procedures and any judgement rendered in arbitration may be entered in any court having jurisdiction over the parties. The location of arbitration, as well as the number and identity of the arbiters, will be determined according to the rules of the American Arbitration Association, and issues of arbitrability will be decided by those arbiter(s). Notwithstanding the foregoing sentences, a claim or a series of related claims with respect to which injunctive relief is sought may be heard in the jurisdiction where it is alleged that the primary activity that is the subject of such claim(s) occurred.
• Parties acknowledge that at various times throughout the duration of this Agreement and during the performance of the Services each Party may be a data controller and/or data processor under applicable data protection regulations such as the General Data Protection Regulations of the EU and the California Consumer Protections Act. Parties each agree to comply with the requirements of all applicable data protection legislation at all times during this Agreement and the performance of the Services. Parties further agree to cooperate in complying with any data reporting and data removal requests relating to Personnel and Prospective Personnel.
• Except as otherwise provided in this Agreement, neither Party will voluntarily, or by operation of law, assign or otherwise transfer its obligations under this Agreement without the prior written consent of the other Party. Any purported assignment or transfer in violation of this section is void.
• It is agreed that there is no representation, warranty, collateral agreement, or condition affecting this Agreement except as expressly provided in this Agreement, and that this Agreement supersedes any and all prior representations, understandings, or agreements between the Parties relating to the subject matter contained herein.
• No amendment to or modification of this Agreement shall be effective unless it is in writing and signed by each of the Parties.
• If any of the provisions of this Agreement is held to be invalid or unenforceable in part, such provision shall be deemed immediately amended so as to preserve the intended rights, warranties, and obligations of each Party to the maximum extent allowable under applicable law, and all other provisions of this Agreement will continue in full force and effect in their unaltered state. To the extent any provisions is found invalid in its entirety, such provision shall be deemed struck from this Agreement and the remainder of the Agreement shall continue in full force and effect in their unaltered state.
• The headings of the sections and subsections of this Agreement are intended for the convenience of reference only and shall not be construed as altering the meaning, scope, or applicability of any portion of this Agreement.

Part 2: Exhibit A – Example

Statement of Work

This statement of work (“Statement of Work”) is issued in reference to Part 2 of the Staffing Services Agreement (“Part 2” and the “Agreement” respectively) agreed between Orbis Consultants, Inc., with its principal place of business at 418 Broadway, #6211, Albany, NY 12207 (“ORBIS”) and the entity identified as Client below (“Client”). This Statement of Work confirms an Assignment as contemplated under Part 2 for the Personnel identified below.