NTrust Terms and Conditions
1. Definitions
Capitalized terms herein have the meanings set forth in the Agreement, and documents incorporated herein by reference including the Procedures Manual, and in this Section 1. The terms, acronyms and phrases used in the informational technology industry or other pertinent business context that are not defined shall be interpreted in accordance with their then-generally understood meanings.
“Abstraction Scope Document” means a document, electronic or otherwise, that describes in sufficient detail the scope of data in form and content, including limitations, to be abstracted from Lease Documents and entered into an Abstraction Template by Provider.
“Abstraction Template” means an electronic document prepared by Provider for each Lease Document in conformity with the Abstraction Scope Document and in a format provided by Customer. Each approved Abstraction Template shall be deemed a Deliverable.
“Business Day” means Monday to Friday (inclusive) in the United States excluding Provider-observed holidays.
“Lease Document” means the aggregate of the documents comprising a lease, and any related attachments, amendments or other documents or information pertaining to the lease, that include all of the information required to complete an Abstraction Template and meet Provider’s reasonable specifications.
“Work Flow” means the agreed-upon policies and procedures to complete the Services, including expected prospective services, specifying in reasonable detail the responsibilities of each of the parties and as described in the Procedures Manual.
2. Services
2.1 Service Description. Provider will, subject to the terms of this SDC and in substantial conformity with the Procedures Manual, provide to Customer the Services described in this Section 2. The Services may be supplemented, enhanced, modified or replaced, in each case, in accordance with the terms of the Agreement.
2.2 Initial Setup Services.
(a) Provider will provide an initial draft of the proposed Work Flow for Customer’s review and consideration.
(b) Customer will provide Provider with the list of locations for which Lease Abstraction is to be performed.
(c) Customer will provide access to the Customer Systems (as defined below) for requested number of users by Provider to the extent such users need access for the purpose of providing Services to Customer
(d) Customer will provide documents related to Lease Abstraction for all Customer locations.
(e) Provider and Customer will mutually agree to initial Lease Abstraction Timeline.
2.3 Scope Validation Services.
(a) Provider will review a sample of three (3) Lease Documents to be selected by Customer (the “Sample Documents”) and make available to the Provider.
(b) The parties will discuss the tentative scope for each data field of the Preliminary Abstraction Template, and based on such discussions, Provider will prepare an Abstraction Scope Document for Customer’s approval, such approval not to be unreasonably withheld.
(c) For each of the Sample Documents, Provider will complete a consolidated Abstraction Template in conformity with the Abstraction Scope Document in accordance with the preliminary Work Flow (together, the “Sample Abstraction Template”) for each of the Sample Documents;
(d) Upon completion of the Sample Abstraction Template, Provider and Customer will meet to assess the results of the cumulative Discovery and Scope Validation Services and agree upon, as applicable, the Abstraction Scope Document and the Abstraction Template (together, the “Approved Scope Documents”), the on-going Work Flow and related timelines and Service Levels and, if applicable, mutually agree on any adjustments to Fees; and
(e) Provider will prepare and deliver, or as applicable update, the Procedures Manual which will include the Approved Scope Documents and the Work Flow and related timelines and Service Levels and, if applicable, any amendments to this SDC.
2.4 Lease Abstraction Services. For each Lease Document made available to Provider by Customer, Provider will in accordance with the Work Flow complete an Abstraction Template in conformity with the applicable Abstraction Scope Document.
(a) Upon batch deliveries of Abstraction Templates, Provider shall inform Customer via email of the availability of such Abstraction Template for Customer’s review. Customer shall promptly initiate and complete its review of such Abstraction Template (including Lease Abstraction data, and the loading thereof into the spreadsheet) within ten (10) business days of Provider’s notification of availability of the pertinent Abstraction Template (“Acceptance Period”);
(b) Customer shall provide Provider notice via email of acceptance of the Abstraction Template within the Acceptance Period (“Acceptance” or “Accepted”). In the event Customer identifies any non-conformance of the Abstraction Template within the Acceptance Period, Customer shall issue to Provider, prior to the expiration of the Acceptance Period, via email a written list of remediation items to be corrected by Provider;
(c) Customer shall provide Provider notice of Acceptance or rejection of the Abstraction Templates after remediation is complete via email. If Customer does not provide such Acceptance notice via email within ten (10) business days following receipt of the remediated Abstraction Template, the Abstraction Template will be deemed Accepted by Customer; and
(d) If Provider does not correct the non-conformance in the Abstraction Template after remediation within three (3) business days, Customer shall be entitled to terminate this SDC and receive a refund of any amounts paid for the non-conforming Abstraction Template.
2.5 Project Management and Administrative Services. Provider will provide Project Management and Administrative Services which will include:
(a) Providing overall quality assurance for the Services;
(b) Providing executive management of the Project Staff;
(c) Collaborating with Customer and its agents to monitor Work Flow, including Customer Operational Responsibilities;
(d) Conducting periodic status meetings and preparing status reports;
(e) Preparing accurate monthly invoices for the Fees and Other Direct Expenses;
(f) Managing the Change Request process and performing overall administration of the Agreement;
(g) Managing and resolving escalated issues; and
(h) Preparing reports reasonably requested by Customer relating to status and performance metrics pertaining to the Services including various service levels, status of escalated issues and such other matters of the Agreement.
3. Fees and Invoicing
3.1 Fees. In consideration of the Services provided to Customer under this SDC, Customer will pay to Provider the Fees as decided by the contract.
3.2 Invoicing. Provider will invoice Customer monthly at the end of the month for the Initial Lease Abstraction services as Provider completes setup in Customer system during that month. Payment is due within 45 days of each invoice.
3.3 Scope Variations. Notwithstanding anything in this SDC to the contrary, if, in Provider’s reasonable discretion, the documents submitted by Customer are significantly more complex or are otherwise beyond the scope contemplated by this SDC or not reasonably within an applicable Abstraction Scope Document, including but not limited to an excessive number of pages, clauses, amendments or attachments, then parties shall negotiate in good faith to determine any additional Fees associated therewith.
4. Service Levels
4.1 General. During the Term, Provider warrants that it will perform the Services in a professional and workmanlike manner, in accordance with the terms of this SOW, and the personnel assigned by Provider will possess the training, education, experience and skill level appropriate and customary in the industry for the Services to be provided to Customer by such personnel.
4.2 Service Hours and Communication. Provider’s personnel will be reasonably available during Customer’s standard business hours between 9am to 5pm (Pacific Standard Time) on Business Days. Unless specifically requested by Customer to the contrary, spoken communication will be with Europe and U.S.-based personnel only.
5. Service Locations
Provider and Provider Agents may provide the Services from Service Locations determined in Provider’s reasonable discretion. Primary Service Locations will include:
(a) Irvine, California; and
(b) Chennai, India.
Upon the mutual agreement of the parties not to be unreasonably withheld, Service Locations may include other locations.
6. Customer Operational Responsibilities
Customer will make commercially reasonable efforts to perform the Customer Operational Responsibilities set forth in this Section 6 including:
(a) Providing Lease Documents in an electronic format that meets reasonable specifications provided by Provider including general readability standards and optical character recognition standards such as minimum dots per inch, alignment and other technical specifications;
(b) Making sufficient, suitably trained Customer personnel available to Provider as reasonably required for Provider’s performance of the Services; and
(c) Responding to questions, providing information, and validating and approving Abstraction Templates in a timely manner.
7. Termination for Convenience
Subject to payment of undisputed Fees otherwise earned or Other Direct Expenses incurred by Provider during the Term.
(a) Customer reserves the right to immediately terminate this Agreement where Provider has failed to perform or meet any term, condition or obligation hereof and has failed to correct the same within ten (10) days after receipt of written notice of such failure by Provider. The termination rights granted under this paragraph are cumulative with and in addition to any other rights or remedies to which Customer be entitled arising from any violation, default or breach of this Agreement.
(b) Any failure by Customer to notify Provider of a violation, default or breach of this Agreement, or to terminate this Agreement on account thereof, shall not constitute a waiver of such violation, default or breach or a consent, acquiescence or waiver of any later violation, default or breach, whether of the same or a different character.
(c) Customer may terminate this Agreement in whole or in part on thirty (30) days’ prior written notice to Provider.
(d). Except as otherwise set forth herein, in the event of any termination or expiration of this Agreement, Customer shall only be liable to Provider for portions of the Fees actually earned by Provider.
8. SDC Specific Customer Policies; Access to Customer Systems
Provider will comply and require its personnel to comply with Customer’s policies, standards, and requirements as required by Customer in performing its obligations under this SDC, including those procedures pertaining to security and confidentiality. Customer may provide Provider access to proprietary systems and applications owned, licensed, or operated by Customer (the “Customer Systems”) to facilitate the performance of Provider’s obligations under this SDC. Provider will only use the Customer Systems for the purpose of performing its obligations under this SDC. Customer may monitor all use of the Customer Systems as allowed by law and review user access records. Provider agrees and acknowledges that neither Provider nor any of its employees have any expectation of privacy when accessing or using the Customer Systems. Provider will be solely responsible for obtaining and maintaining the hardware and software it uses which are necessary to properly access the Customer Systems and perform its obligations under this SDC. Customer may suspend or revoke Provider employees’ access to the Customer Systems in its sole discretion.
9. Incremental Terms and Conditions
The terms and conditions set forth below are deviations from, or additions to, the terms and conditions of the Agreement. The terms and conditions in this Section 10 apply to the Services described in this SDC, and each Party’s performance of its obligations under this SDC.
10. Cooperation
The parties will work together in good faith and will manage the Agreement and Services hereunder in a fair, balanced and equitable manner while remaining cognizant of the economic and business needs and constraints of each of the parties.
11. Work Product
Customer is and will be, the sole and exclusive owner of all right, title and interest in and to all documents, work product and other materials that are delivered to Customer, created, or prepared by or on behalf of Provider in the course of performing the Services (the “Work Product”) including all intellectual property rights therein. Work Product will include any Deliverables identified in the Agreement, or otherwise agreed upon between Customer and Provider in writing. Provider agrees, and will cause Provider employees to agree, that with respect to any Work Product that may qualify as “work made for hire” as defined in 17 U.S.C. §101, such Work Product is hereby deemed a “work made for hire” for Customer. To the extent that any of the Work Product does not constitute a “work made for hire,” Provider irrevocably assigns, and shall cause Provider employee to irrevocably assign to Customer, in each case without additional consideration, all right, title and interest throughout the world in and to the Work Product, including all intellectual property rights therein. Provider will cause Provider employee(s) to irrevocably waive, to the extent permitted by applicable law, any and all claims they may now or hereafter have in any jurisdiction to so-called “moral rights” with respect to the Work Product. Provider’s obligations with respect to Work Product will survive the expiration or termination of the Agreement.
12. Language
All written and spoken communications between the parties shall be in English.
13. Confidential Information
(a) Provider agrees that at all times during and after the Term, to hold in strictest confidence, any Confidential Information that Provider obtains or creates in connection with providing Services to Customer. Provider will not use Customer’s Confidential Information, except for the benefit of Customer to the extent necessary to perform Provider’s obligations to Customer under this Agreement. Provider will not disclose Customer’s Confidential Information to any person, firm, corporation, or other entity without written authorization of Customer. Notwithstanding the foregoing, Provider may disclose Confidential Information to Provider’s employees only to the extent reasonably necessary for Provider’s employees to provide the Services and only if such employees are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 10.3. During and after the Term, Provider will not, without the prior written consent of Customer, in any manner publish the fact that Provider has provided or contract to provide Customer with Services or use the name or trademarks of Customer or its affiliates except as permitted by Customer.
(b) The term “Confidential Information” means any and all oral or written (including electronically recorded) confidential technical, business, or other information including, but not limited to, information related to, or contained in, patents, patent applications, presentations, emails, research, product plans, products, developments, inventions, trade secrets, know-how, processes, designs, drawings, engineering, formulae, markets, software (including source and object code), computer programs, algorithms, business plans, agreements with third parties, licenses, services, customers, customer lists, suppliers, prices and costs, finances, budgets, marketing or other business and technical information disclosed to Provider or Provider employee(s) by Customer (including information of third parties) or created by Provider or Provider employee(s) in its performance of the Agreement, whether or not during working hours. The existence of this Agreement and the parties’ relationship is Confidential Information and shall not be publicly disclosed by a given party without the express written consent of the other party. Confidential Information does not include any information that was in the public domain at the time it was disclosed by Customer or entered the public domain through no wrongful act of Provider or of others who were under confidentiality obligations as to the information involved.
(c) Upon termination of this Agreement or upon written request by Customer, Provider will deliver to Customer or destroy (and will not keep in Provider’s possession, recreate or deliver to anyone else) all Customer property and documents (either electronic copies or hard copies), including, but not limited to, documents containing Confidential Information, presentations, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, sketches, laboratory notebooks, or flow charts developed by Provider pursuant to this Agreement or otherwise owned by Customer. At the request of Customer, Provider shall certify in writing that all documents have been so returned to Customer or destroyed.
14. Representations and Warranties
Provider represents and warrants that (i) Provider is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (ii) Provider has full right, power, and authority to enter into and perform this Agreement without the consent of any third party, including the right to grant all licenses granted by Provider in this Agreement; (iii) Provider is duly licensed (as applicable) and has the qualifications, the experience and the ability to properly perform the Services; (iv) Provider will abide by all applicable laws and regulations in the course of performing the Services; (v) Provider will not, in the course of performing the Services, infringe or misappropriate, and neither the Services or Work Product, nor any element thereof, will infringe or misappropriate, any intellectual property rights of any other person; (vi) the execution, delivery and performance of this Agreement does not and will not cause a breach of the terms of any agreement that Provider is bound by; (vii) Provider will perform the Services (a) using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with best industry standards for similar services; and will devote adequate resources to meet its obligations under this Agreement and (b) consistent with all specifications and requirements; and (viii) neither the Work Product non Provider’s provision of the Services will introduce any virus, worm, time bomb, trojan horse or other harmful or malicious code, file, script, agent or program into Customer’s systems or servers.
15. Indemnification by Provider
Provider will indemnify and hold harmless Customer and its respective employees, officers, and directors (“Customer Indemnitees”) from and against any and all liabilities, losses, damages, costs, and other expenses (including attorneys’ costs and fees) arising from or relating to (a) any breach of any representation, warranty, covenant, or obligation of Provider in this Agreement; (b) any allegation that the Services or Work Product (or Customer’s use thereof) infringe(s) any intellectual property right of any third party; or (c) any intentional misconduct or negligence by Provider or any Provider’s employees in performing the Services. In the event of any third-party claim, demand, suit, or action (a “Claim”) for which any of the Customer Indemnitees is or may be entitled to indemnification, Customer may, at its option, require Provider to defend such Claim at Provider’s sole expense. Provider may not agree to settle any such Claim with Customer’s express prior written consent.
16. Limitation of Liability
Except for Provider’s liability arising under Section 10. 5 (Confidential Information) and Section 10.6 (Indemnification), in no event will either party be liable to the other party for any loss of use, revenue, or profit or for any consequential, incidental, indirect, exemplary, special, or punitive damages, regardless of whether such damage was foreseeable and whether or not such party has been advised of the possibility of such damages.
17. Lease Document Standards
The Provider may specify Lease Document Standards. Such standards shall be reasonably applied by Provider and include availability of the Lease Document in a specified electronic format, readability of all pages, and completeness of the Lease Document including any exhibits, attachments or other separate documents or pages required to complete the applicable Abstraction Template. Such standards may also specify that documents meet reasonable optical character recognition standards, including minimum dots per inch, alignment specifications and other technical specifications. The Provider will determine whether or not a Lease Document meets the Lease Document Standards. Provider may either (a) accept the submitted document or (b) identify and communicate deficiencies to Customer in accordance with the Work Flow.