Effective date: July 2020
This Cloud-Support Project Agreement (“Agreement”) sets forth the terms and conditions under which NorthgateArinso Italia Srl(a limited liability company registered in Milan No. IT12703160155) having its registered office at Viale Sarca, 235, 20126 Milan, Italy(“Alight”) shall provide the client which is party to a SOW (defined below) (the “Client”) with Services (defined below). Client and Alight may be individually referred to herein as a “Party” or collectively as the “Parties.”
In consideration of the mutual covenants herein contained, the Parties, intending to be legally bound, agree as follows.
ARTICLE I - NATURE OF AGREEMENT
Alight shall provide those services to Client as set forth in any SOW (the “Services”). To be effective, each statement of work (“SOW”) shall reference this Agreement and be duly executed by an authorized representative of each Party. The SOW may be amended from time to time as Client and Alight may agree as necessary to change the scope of the work to be performed pursuant to the change order provisions of the SOW.
ARTICLE II - SCOPE OF RELATIONSHIP
2.1 Employees. Alight shall be responsible for payment of all salaries, and federal, social security, unemployment taxes, and any other applicable taxes related to its personnel. Alight shall make commercially reasonable efforts to maintain the continuity of project team throughout the term of the SOW. Should Client reasonably determine that an Alight employee be removed from the project, (i) Client will notify Alight and provide specific examples related to the business reason, (ii) Alight will have an opportunity to take appropriate developmental or disciplinary action to prevent a recurrence of the issue based on feedback provided by Client, and (iii) if employee performance does not improve, Alight will, in good faith, replace the employee with a new team member within a timeframe that prudently enables a timely replacement while allowing Alight to continue to deliver on its commitments set forth in the SOW.
2.2 Consents. Client shall obtain any licenses, consents, authorizations and approvals relating to (a) Client’s owned, licensed and leased assets, including the Cloud Service (defined below), or (b) the information made available by or on behalf of Client hereunder, in each case to the extent necessary to enable provision of the Services as contemplated herein.
ARTICLE III - TERM OF AGREEMENT; PAYMENT
3.1 Term. This term of this Agreement shall begin on the effective date of the SOW and will continue until terminated by either Party in accordance herewith. Each SOW will indicate the term of the Services covered by such SOW. Client may terminate this Agreement or any SOW at any time and for whatever reason by providing Alight with at least sixty (60) days’ prior written notice. Alight may terminate this Agreement, following the completion of all SOW(s) then in existence under this Agreement, for whatever reason, by providing Client with at least sixty (60) days’ prior written notice. If this Agreement or any SOW is terminated prior to the end of the applicable term, Client will be responsible for any fees for Services performed up to the date of termination, and any other amounts described in the terminated SOW(s). If Services under any SOW extend beyond the applicable term, the terms of the Agreement will automatically extend until such Services are completed.
3.2 Payment; Taxes. Client will pay compensation to Alight for the Services as specified in the SOW. The compensation paid to Alight attributable to the performance or receipt of the Services do not include any applicable federal, state or local sales, use, excise, value-added, withholding, personal property or other similar taxes (collectively “Transaction Taxes”). Client shall be responsible for any and all Transaction Taxes; provided that Client shall not be responsible for or pay any taxes relating to Alight’s income, capital, gross receipts, employees or real or personal property.
ARTICLE IV - PERFORMANCE OF SERVICES
4.1 Conduct. During the performance of Services by any Alight personnel, Client is responsible for setting forth any Client specific rules, regulations, internal controls, and procedures to be followed by Alight personnel when operating on Client premises. In all other instances, Alight and Alight personnel shall follow Alight’s policies, including Alight’s information security and compliance policies, in the performance of Services under this Agreement.
4.2 Performance. The Alight personnel shall perform the Services in a good and workmanlike manner consistent with Alight’s best practices and any applicable standards in the industry. Alight shall utilize its implementation methodologies and supervise, manage, contract, direct, procure, perform or cause to be performed, all work to be performed by Alight, Alight affiliates, subcontractors, or any Alight agent under this Agreement. Alight shall have discretion and flexibility to structure its operations to deliver the Services from various Alight service locations and Alight affiliates located globally.
4.3 Access to Premises. Client shall permit and arrange for access to the Client premises and records requested by Alight as necessary to perform the Services. In instances in which Alight personnel need to perform Services under this Agreement at Client’s premises, Client will provide appropriate work space to any Alight personnel assigned to provide such Services.
4.4 Data Accuracy. Client will submit to Alight all Client data in Client’s control necessary for Alight to perform the Services. Client shall be responsible for the accuracy and appropriateness of any data or other materials provided or otherwise made available to Alight by or on behalf of Client.
4.5 Data Security and Privacy. Alight shall take measures designed to maintain the security and privacy of personal information as defined and described Alight’s Information Security and Data Privacy Terms, which are available at https://alight.com/isdptemea (the “ISDPT”).
4.6 Acceptance. Client will have an opportunity to review and either (i) accept or (ii) object to the Services as set forth in a SOW (“Acceptance”). If Client objects, Client will provide Alight with a written description of the objection. Alight and Client will review the objection and agree on a resolution to the objection. As part of such Acceptance process, Alight and Client will (a) act reasonably, taking into account the specifications of the Services; and (b) not withhold acceptance of Services for minor or insubstantial variations to meet specifications unless such variations materially and adversely impact Client’s use of the Services. Client’s use of the Services shall be deemed an Acceptance. Client will not owe Alight any compensation for the correction of Services as part of the Acceptance process, unless the Services are provided on a time and materials basis.
4.7 Warranty. Alight warrants that each Deliverable, when delivered, shall conform in all material respects with the specifications developed under the applicable SOW.
4.8 COVID-19. Notwithstanding anything to the contrary herein, neither Party shall be liable for, nor be deemed to be in breach hereof as a result of, any failure to comply with its obligations hereunder (except for any of Client’s payment obligations hereunder) to the extent attributable to the global COVID-19 pandemic; provided that nothing in this Section shall limit or otherwise affect Alight’s obligation to execute its business continuity and disaster recovery program. The affected Party shall give the other Party prompt notice of any such event and use commercially reasonable efforts to end and minimize the effects thereof.
ARTICLE V - CONFIDENTIALITY & NON-SOLICITATION
5.1 Confidentiality Obligation. The Party receiving Confidential Information (the “Receiving Party”) will use reasonable efforts, consistent with the terms of the ISDPT, to cause its employees to prevent unauthorized disclosure of the Confidential Information of the other Party (the “Disclosing Party”). The Receiving Party shall not use the Disclosing Party’s Confidential Information for any purpose other than to exercise its rights or perform its obligations hereunder. The Receiving Party shall not, without the prior written consent of the Disclosing Party, disclose any of the Disclosing Party’s Confidential Information to any person other than the Receiving Party’s affiliates and its and their directors, officers, employees, independent contractors, advisors, subcontractors, vendors, agents or other representatives (collectively, “Representatives”) who, in each case, (a) reasonably require access to such Confidential Information to assist the Receiving Party to exercise its rights or perform its obligations under this Agreement, and (b) have a contractual, legal, professional or fiduciary obligation of confidentiality to the Receiving Party that is consistent in all material respects with the Receiving Party’s obligations of confidentiality to the Disclosing Party hereunder. The Receiving Party shall be responsible for any use or disclosure of the Disclosing Party’s Confidential Information by any of its Representatives (in their capacity as such) to the extent such use or disclosure, if by the Receiving Party, would not be permitted hereunder.
5.2 Confidential Information.For the purposes of this Agreement, “Confidential Information” means (a) the terms of this Agreement (including all attachments to this Agreement ); (b) for Client, Client Intellectual Property (defined below in Article VI); (c) for Alight, Alight Intellectual Property (defined below in Article VI); (d) information designated by the Disclosing Party as confidential prior to the Receiving Party obtaining access thereto; and (e) information that should reasonably be expected to be treated as confidential by the Receiving Party whether or not such information is designated as confidential. Each Party’s respective Confidential Information will remain its sole and exclusive property. Notwithstanding the foregoing, Confidential Information shall not include any information that: (1) at the time of disclosure or subsequent to the disclosure the information was or becomes part of the public domain, except through direct or indirect disclosure by the Recipient in breach of this Section; (2) was in the Receiving Party’s possession free of any obligation of confidence at the time of disclosure by or on behalf of the discloser to the Receiving Party and was not otherwise acquired, directly or indirectly, from the discloser; or (3) was developed independently by the Receiving Party or its employees, consultants or agents without use of the Disclosing Party’s Confidential Information.
5.3 Required Disclosure. The Receiving Party may disclose Confidential Information as required to comply with a valid order or other requirement of a court or other governmental body. Written notice of such order or requirement shall be given to the Disclosing Party promptly after being subject to such order or requirement and, if practicable, in advance of the required disclosure. The Receiving Party shall cooperate with efforts by the Disclosing Party to seek a modification of the disclosure requirement and/or a confidentiality agreement or protective order governing the disclosure.
5.4 Injunctive Relief. Except as expressly set forth in this Section, the Receiving Party recognizes that its inappropriate disclosure or use of Confidential Information of the Disclosing Party may give rise to irreparable injury to the Disclosing Party and acknowledges that remedies other than injunctive relief may not be adequate. Accordingly, the Disclosing Party has the right to seek equitable and injunctive relief to prevent the unauthorized possession, use, disclosure or knowledge of any Confidential Information.
5.5 Solicitation of Alight’s Personnel. Client agrees that Client shall not solicit for employment any employee of Alight or any of its affiliates that performed Services under any SOW with whom Client had contact in connection with such performance during the term of such SOW and for a period of twelve (12) months after the earlier of: (i) its expiration or termination; or (ii) the employee’s completion of his/her work under the SOW. Such restriction shall not apply to Client’s general recruiting activities that are not specifically targeted at employees or an employee of Alight or any of its affiliates.
ARTICLE VI - INTELLECTUAL PROPERTY
6.1 Definitions. For the purposes of this Agreement, the following terms shall have the following definitions:
- (a) Cloud Service means a Cloud Service Provider’s cloud-based software services provided to Client pursuant to a separate and independent master agreement between Client and the Cloud Service Provider.
- (b) Cloud Service Provider means a third party provider of a cloud-based software services.
- (c) Intellectual Property Rights means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.
6.2 Alight Intellectual Property. Alight has created, acquired or otherwise has rights in, and may, in connection with the performance of Services hereunder, employ, provide, modify, create, acquire or otherwise obtain rights in, various concepts, designs, ideas, methods, processes, software, integrations, enhancements, data, documentation, and proprietary information (together with all Intellectual Property Rights thereto, collectively, “Alight Intellectual Property”). To the extent that Alight utilizes any of Alight Intellectual Property in connection with the performance of Services, such property is and shall remain the property of Alight and, except for the limited license expressly granted in Section 6.4 below, the Client shall acquire no right or interest in such property.
6.3. Client Intellectual Property. All right, title and interest in and to any data, information and other materials furnished to Alight by or on behalf of Client hereunder (together with all Intellectual Property Rights thereto, collectively, “Client Intellectual Property”), as between Client and Alight, are and shall remain Client’s sole and exclusive property. Client grants to Alight a license to use Client Intellectual Property to provide the Services. Client represents and warrants that: (a) it is either the owner of or is authorized to use in the manner contemplated by this Agreement all of the Client Intellectual Property provided by or on behalf of Client, and (b) that all applicable Client software license and maintenance agreements are and will be current and paid by Client.
6.4. Deliverables. Client shall own all reports and records provided by or on behalf of Alight to Client in performing the Services except for any Alight intellectual Property rights therein (e.g., trademarks and templates) (“Deliverables”).
6.5 No Other Rights. This Agreement does not grant or otherwise give either Party ownership in or any other right, title or interest to use any of the other Party's intellectual property (either Alight Intellectual Property or Client Intellectual Property, as the case may be), except as explicitly described herein. In addition, nothing in this Agreement is intended to address Client’s rights to use the Cloud Service.
ARTICLE VII INDEMNIFICATION AND LIABILITY
7.1 Indemnification by Client. Client shall indemnify, defend and hold Alight harmless from and against any and all costs, losses, liabilities, expenses (including reasonable attorneys’ fees) and judgments (collectively, "Losses") actually and reasonably incurred by Alight in connection with third party claims against Alight resulting from infringement of any patent or any third party intellectual property right by Client in connection with the performance and receipt of the Services. Only Client may enforce this Agreement against Alight and, without prejudice to claims that Client may itself bring hereunder, Client shall indemnify, defend and hold Alight harmless from and against any and all Losses in connection with claims brought against Alight by Client’s subsidiaries or affiliates.
7.2 Indemnification by Alight. Alight shall indemnify and hold Client harmless from and against any and all Losses actually and reasonably incurred by Client in connection with third party claims against Client resulting from infringement of any patent or any third party intellectual property right by Alight in connection with the performance and receipt of the Services, except to the extent caused by Client’s failure to comply with its obligations under this Agreement.
7.3 Limitation of Liability. Notwithstanding anything to the contrary herein, to the extent permitted by law, each Party’s maximum aggregate liability arising from or related to this Agreement in respect of each SOW shall not in any event exceed an amount equal to the actual fees paid to Alight in connection with such SOW (the “General Cap”); provided that such limitation shall not apply to any liability resulting from a breach by a Party of its obligations under Section 5.1 (Confidentiality Obligation) or a breach by Alight of its obligations under Section 4.5 (Data Security and Privacy), which liabilities shall not in any event exceed an aggregate amount equal to the greater of $500,000 and the General Cap (the “Data Cap”) (it being understood and agreed that liabilities subject to the General Cap shall not apply toward the Data Cap and vice versa). Notwithstanding the foregoing, such limitations shall not apply to any liability resulting from (a) any fraudulent, criminal or willful and intentional misconduct by a Party or any of its Representatives, (b) a Party’s indemnification obligations under Section 7.1 or 7.2, (c) death or personal injury caused by its negligence, or that of its employees, agents or subcontractors, (d) any other act or omission or liability which may not be limited or excluded under applicable law, or (e) a breach by Client of any of its payment obligations hereunder. Neither Party shall in any circumstances be liable under or in connection with this Agreement for (i) loss of profits; (ii) loss of business; (iii) loss of revenue; (iv) depletion of goodwill/similar losses; (v) loss of contracts; (vi) loss of anticipated savings; (vii) ex gratia payments of any kind; or (viii) any indirect, special, consequential or pure economic loss howsoever caused (including by negligence), whether or not the Party has been advised of the possibility of such damages. To the extent permitted by law, Losses between the Parties relating to, directly or indirectly, or arising from this Agreement (including the Services), however caused, regardless of the form of action and on any theory of liability, including contract, strict liability, negligence or other tort, shall be brought under this Agreement and shall be subject to the terms of this Agreement.
7.4 Mitigation. Each Party shall use reasonable efforts to mitigate its own, as well as the other Party’s, liability, damages, and other losses suffered in connection with and arising out of this Agreement.
ARTICLE VIII - GENERAL PROVISIONS
8.1 Entire Agreement; Amendment; Counterparts. This Agreement represents the entire agreement between the Parties with respect to the subject matter hereof, and there are no other representations, understandings or agreements between the Parties relative to such subject matter. No amendment to, or change, waiver or discharge of, any provision of this Agreement shall be valid unless signed by an authorized representative of each of the Parties.
8.2 Third Party Beneficiaries. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement and the Contracts (Rights of Third Parties) Act 1999 is hereby excluded.
8.3 Excused Non-performance. Neither Party will be in breach of this Agreement or any SOW as a result of, nor will either Party be liable to the other Party for, liabilities, damages, or other losses arising out of delays in performance caused by acts of God, government authority, strike or labor disputes, fires or other loss of facilities, and other similar occurrences as long as such Party is diligently attempting to correct the cause of the delay. Alight’s failure to perform the Services or its other obligations in accordance with the applicable terms of this Agreement shall be excused to the extent that any such failure is attributable to Client’s or Client’s third parties failure to fulfill its obligations under this Agreement or to take corrective action within tasks allocated to Client in a SOW.
8.4 Assignment. Neither Party may assign this Agreement or any of its rights herein without the prior written consent of the non-assigning Party and any purported assignment without such consent shall be void and unenforceable; provided that each Party may, without obtaining such consent, assign this Agreement in its entirety to any affiliate of such Party (provided that no such assignment shall relieve such Party of its obligations hereunder) or to any person in connection with any sale or other transfer of all or substantially all of the assets of such Party. Notwithstanding the foregoing, Alight may engage affiliates, subcontractors and other third parties to perform a portion of the Services; provided that Alight shall remain responsible for the performance of such Services by such affiliates, subcontractors and other third parties to the same extent as if such Services were performed by Alight.
8.5 Severability and Waivers. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, then the remaining provisions of this Agreement, if capable of substantial performance, shall remain in full force and effect. No delay or omission by either Party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by any Party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be signed by the Party waiving its rights. Except as otherwise provided, all remedies available to a Party for breach of this Agreement under this Agreement, at law or in equity, are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.
8.6 Survival. It is expressly understood and agreed that the Parties’ respective obligations under this Agreement that by their nature continue beyond the termination or expiration of this Agreement shall survive such termination or expiration of this Agreement.
8.7 Governing Law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter (including non-contractual disputes) shall be governed by and construed in accordance with Italian Law and each of the Parties irrevocably submits to the exclusive jurisdiction of the Italian courts.
8.8 Disputes. In the event of any dispute arising from or related to this Agreement, the Parties shall for a period of at least 30 days attempt in good faith to negotiate a resolution thereof, including by escalating the matter to the managers of the persons with direct responsibility for administration of this Agreement; provided that the foregoing shall not limit a Party’s right to commence legal proceedings to prevent irreparable harm. All communications in connection therewith shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.
8.9 Notices. All notices, requests, demands and other communications required to be given hereunder shall be in writing and shall be deemed given when actually received and may be given by personal delivery, overnight delivery service, or certified or registered mail, return receipt requested, to the Party for whom intended at the address first noted in the SOW, or such other location as may be provided by giving written notice thereof in accordance with the provisions of this Section.
8.10 Further Assurances. After the execution and delivery of this Agreement and without any additional consideration, each of the Parties shall execute and deliver any further legal instruments and perform any actions which are or may become reasonably necessary to effectuate the purposes of this Agreement.
8.11 Consents, Approvals and Requests. Except as specifically set forth in this Agreement, all consents, approvals, notices, requests, and similar actions to be given or taken by either Party under this Agreement shall not be unreasonably withheld or delayed and each Party shall make only reasonable requests under this Agreement.
8.12 Independent Contractor. The Parties intend to create an independent contractor relationship and nothing contained in this Agreement shall be construed to make either Client or Alight or their respective affiliates, representatives, partners, joint ventures, principals, representatives or employees of the other.
8.13 Miscellaneous. The SOW(s) to this Agreement executed by the Parties are incorporated into and deemed part of this Agreement. The Section headings are for reference and convenience only and shall not be considered in the interpretation of this Agreement. References to Sections are to the referenced portions of this Agreement unless otherwise specified. If there is an inconsistency between the terms in the body of this Agreement and any other agreed upon contractual document attached to (including SOW(s)), incorporated into, or executed in connection with this Agreement, the terms of the SOW(s) shall prevail. The terms “including” and “e.g.” shall mean “including, without limitation.” References to days or time periods shall be to calendar days or calendar time periods unless otherwise expressly stated.