This agreement is signed between Drayage Specialist Services (Referred as “Drayage Specialist” hereafter) and any/all registered customers using our services (Referred as “The Customer” hereafter) and governs the arrangements by which Drayage Specialist will provide The Customer with access to dedicated BPO staff in the Philippines, India and Dominican Republic.
1. TERM SCOPE OF AGREEMENT
1.1 The Term of the Service of this Contract will be 12 months commencing from The Start Date
1.2 This agreement will be subject to a 3 month probationary period in which the contract may be terminated by either party.
1.3 The terms of this agreement shall apply to the first staff placement and all future staff placements with Drayage Specialist Services
1.4 After 12 months the contract will renew automatically, unless The Customer terminates pursuant to Clause 7 herein.
2.1 Payment Terms and conditions
a) The Customer must pay the fees invoiced by Drayage Specialist in the manner specified in this Agreement.
b) The Customer must pay 100% advance payment for each month or four weekly (depending on the month).
c) Invoices are sent on the 1st day of each month (for the following month) with 14 days to pay.
d) Disputes and/or corrections to invoices by either Party shall be raised within the first seven(7) days after receipt, after which period the invoices shall be considered true and accurate with finality.
e) If there is a dispute about whether a Fee or other amount contemplated by this agreement is payable, The Customer must not withhold the amount in dispute.
2.2 Payment Method
Payment is accepted through:
- Credit Card
- Electronic Funds Transfer
- The processing fee charged by the bank or Merchant service provider is payable at The Customer’s end. Fees not paid will be added to the next periodic invoice.
2.3 Costs and Taxes
a) Each party must meet or pay its own legal costs and disbursements in respect of the preparation, negotiation and execution of this agreement.
b) The Customer must pay all stamp duty (including penalties and interest) assessed or payable in connection with this agreement.
c) The Customer must pay all taxes, duties and government charges imposed or levied in Australia or overseas in connection with the performance of this agreement.
d) In this clause
i) ‘TAXES’ means Drayage Specialist; and
ii) other capitalized terms used that are not defined in this clause 2.3 have the meaning given for Taxes.
e) If the services made under or in connection with this agreement are a Taxable, then:
i) the Recipient must pay the taxes an amount equal to the taxes for the Supply (in addition to the consideration otherwise payable under this agreement for that Supply); and
ii)the Supplier must give the Recipient a Tax Invoice for the Supply.
f) If either party has the right under this agreement to be reimbursed or indemnified by another party for a cost incurred in connection with this agreement, that reimbursement or indemnity excludes any taxes component of that cost for which an Input Tax Credit may be claimed by the party being reimbursed or indemnified, or by its Representative Member, Joint Venture Operator or other similar person entitled to the Input Tax Credit (if any).
2.4 Other Costs:
a) If any third-party licensed software is required (e.g. Adobe Photoshop) its cost will be borne by The Customer. Additional costs will only be incurred upon request and approval of The Customer.
b) Phones and Phone Call Charges are not included within the standard monthly fee contemplated by this Agreement. Drayage Specialist may provide these on request at an additional agreed cost.
c) The Customer is required to pay an extra charge for additional hours (e.g. overtime) that staff may work during any particular month. Additional hours will only be worked at the request and approval of The Customer.
2.5 Payment Defaults
In the event of default in payment as per the payment conditions mentioned in this agreement, the account may be forwarded to a collection agency who will add their collection charge and/or legal costs onto the cost of the outstanding payments.
2.6 Deferral of performance
If the Customer fails to pay the Fees in accordance with this agreement, without limiting any other remedies available to Drayage Specialist, Drayage Specialist may defer performance of all Services or prevent the Customer from accessing the Services (or both) until the outstanding Fees are paid.
3. DRAYAGE SPECIALIST SERVICE PROVIDERS
3.1 Dedicated BPO Staff
a) Drayage Specialist Service Providers work Monday to Friday, from 9AM to 5PM Manila time (2 hours behind AEST) unless specified in this agreement as per Addendum B.
b) Drayage Specialist Service Providers work under the guidance of The Customer. Responsibility and liability for the work done, including (but not limited to) project work, planning, and execution of assigned tasks is the responsibility of The Customer.
c) The Customer is responsible providing Drayage Specialist Service Providers with all necessary work specifications, technical documentation, data definitions, tasks, etc for working on the project(s).
d) The Customer is responsible for allocating the task and reviewing the task on daily/weekly basis.
3.2 Staff Holidays
a) Drayage Specialist Service Providers are entitled to United States public holidays as gazetted by the Government. The approved public holiday dates can be found at https://www.commerce.gov/hr/employees/leave/holidays.
b) If Drayage Specialist Service Providers work overtime the additional days / hours worked will be billed in the following months invoice.
c) Periods of leave taken will be negotiated between The Customer and the Drayage Specialist Service Providers member engaged.
3.3 Replacement Staff
a) In the event that a dedicated Drayage Specialist Service Provider leaves Drayage Specialist within the contract period, Drayage Specialist, in consultation with The Customer will arrange for replacement Drayage Specialist Service Provider at no additional cost to The Customer.
b) The Customer will not be liable for any fees for the relevant position during the period between the date when a staff member stops work on the project and the date when a replacement staff member commences work on the project.
c) Drayage Specialist will endeavor to arrange a replacement Drayage Specialist Service Provider within 28 days of the dedicated Drayage Specialist Service Provider leaving Drayage Specialist. The Customer understands and acknowledges that this may not be possible and that Drayage Specialist is not liable to the Customer for any loss or downtime suffered as a result of this.
d) If, during the first three (3) months of this Contract, The Customer is not satisfied with the assigned Drayage Specialist Service Provider, The Customer may, by giving seven (7) days notice in writing to Drayage Specialist request replacement staff. If such a request is made after the first three (3) months of this Contract, twenty eight (28) days notice is required to be given.
e) Furthermore, The Customer will not be liable for any fees for the relevant position during the period between the date when the original staff member stops work and the date when a replacement staff member commences work.
3.4 Lead time
a) Depending on the availability of Drayage Specialist staff, a period of lead time will be required to allocate and prepare staff and prepare staff.
b) Once Drayage Specialist has identified appropriate staff it shall forward to The Customer a notice in writing setting out the names and other relevant details of the nominated staff.
c) Upon receipt of this notice The Customer shall have a period of seven (7) days within which to confirm that the proposed staff are acceptable and to nominate a starting date (“The Start Date” hereafter) for the performance of the services under this Agreement.
4.1 The Customer must not resupply the Services to any third party and must only use the Services for its own benefit.
5.1 Obligations of confidence
Each party agrees to keep confidential, and not to use or disclose, other than as permitted by this agreement, any Confidential Information of the other party provided to or obtained by that party prior to or after entry into this agreement.
The obligations of confidence in clause 0 do not apply to Confidential Information:
a) that is required to be disclosed by applicable law, or under compulsion of law by a court or government agency, as long as the party disclosing the information:
i) discloses the minimum amount of Confidential Information required to satisfy the law or rules; and
ii) before disclosing any information, gives reasonable written notice to the other party and takes reasonable steps (whether required by the other party or not) to maintain such Confidential Information in confidence;
b) that is in the public domain otherwise than as a result of a breach of this agreement or other obligation of confidence; or
c) that is already known, rightfully received or independently developed, by the party receiving the information free of any obligation of confidence.
5.3 Restriction on disclosure
Each party may use and disclose Confidential Information of the other party only:
a) with the prior written consent of the other party; or
b) to that party’s directors, agents, related bodies corporate, third party service providers, professional advisors, employees, contractors and permitted sub-contractors solely for the exercise of rights or the performance of obligations under this agreement.
6. INTELLECTUAL PROPERTY
a) Drayage Specialist Material remains the property of Drayage Specialist and nothing in this agreement grants the Customer any Intellectual Property Rights in Drayage Specialist Material or other Intellectual Property Rights of Drayage Specialist. Similarly, the Customer’s Material remains the property of the Customer and nothing in this agreement grants Drayage Specialist any Intellectual Property Rights in the Customer’s Material or other Intellectual Property Rights of the Customer.
b) All equipment, plans, specifications, designs, software, report and other documents, which are procured or developed by Drayage Specialist for The Customer, shall exclusively become and remain the intellectual property of The Customer.
6.1 License of Customer Material
Subject to clause 6 the Customer grants to Drayage Specialist a non-exclusive, irrevocable, global license to exercise the Intellectual Property Rights in any Customer Material (including to use and modify the Customer Material):
a) In connection with Drayage Specialist providing Services to the Customer; and
b) For the purposes of invoicing and billing calculations, gathering usage statistics, analyzing storage and growth requirements and performance maintenance and support including upgrades audits, performance running and backups.
c) The License granted under this Agreement includes the right to sublicense to third parties.
d) The Customer acknowledges that elements of the Services are provided by third parties and resupplied to the Customer by Drayage Specialist, and the use of such Services is subject to third party License terms and conditions.
7.1 Termination for breach
a) the Customer commits a breach of this agreement; or
b) an Insolvency Event occurs in relation to the Customer,
then Drayage Specialist may terminate this agreement by written notice to the Customer in which case this agreement will terminate on the date specified in the notice, or if no date is specified, immediately.
7.2 Termination for infringement claim
Drayage Specialist may terminate this agreement by written notice to the Customer if a third party makes a claim or allegation that use of the Services or receipt of the Services by the Customer infringes the Intellectual Property Rights of any third party, in which case this agreement will terminate on the date specified in the notice, or if no date is specified, immediately.
7.3 Termination by notice
a) Either party may terminate this agreement by giving written notice of no less than 3 months to the other party.
b) Either party may terminate this agreement during the probation period by giving written notice of no less than 28 days in which case the termination is effective immediately upon the expiry of that period.
7.4 Waiver and acknowledgement
a) The Customer expressly waives any rights it may have to terminate this agreement other than as contemplated by clause 7.
b) The Customer acknowledges that Drayage Specialist may terminate this agreement under this clause 7 without considering the impact of the termination on the Customer.
7.5 After termination
On termination of this agreement:
a) No amount is refundable by Drayage Specialist to the Customer.
b) The Customer will be liable to Drayage Specialist for services rendered by Drayage Specialist, for the payment of any unpaid fees under this Contract up to the date of the notice of termination.
c) Accrued rights or remedies of a party are not affected;
Termination of this agreement will not affect any provision of this agreement which is expressly or by implication intended to come into force or continue on or after the termination.
8 RESTRICTIONS ON HIRING DRAYAGE SPECIALIST SERVICE PROVIDERS AND CANDIDATES
8.1 If the Customer or a related Body Corporate make an offer of direct employment (whether temporary or permanent) to a Drayage Specialist Service Provider who is performing an assignment for the Customer (or who has performed an assignment for the Customer during the previous 12 months) which is accepted by the Drayage Specialist Service Provider, the Customer must pay to Drayage Specialist $22,500.00 USD plus TAXES for each Drayage Specialist Service Provider employed by the Customer.
8.2 Upon termination of this contract, the Customer or a related body corporate cannot make an offer in respect of a contract, permanent employment further projects or different assignments to a Drayage Specialist Service Provider who is performing an assignment for the Customer (or who has performed an assignment for the Customer during the previous 12 months) until after 12 months following the termination of this contract.
8.3 The Customer cannot directly offer permanent employment, contracts, projects or assignments to the friends, family, associates, referrals or network of a Drayage Specialist Service Provider without the involvement and approval of Drayage Specialist.
8.4 Exchanging and asking for any information relating to the agreement relating to the agreement such as contract payments and rate between Drayage Specialist and a Drayage Specialist Service Provider is strictly prohibited under this Agreement.
8.5 If the Customer breaches clauses 7.2 and 7.3 above the Customer must pay to Drayage Specialist an agreed placement fee of $22,500.00 USD plus TAXES for each Drayage Specialist Service Provider or person employed by the Customer.
9. DRAYAGE SPECIALIST PLATFORM
9.1 Drayage Specialist gives permission and charges a fee for service to the Customer for access to access and use remote access software from time to time.
9.2 The remote platform software used is at the discretion of Drayage Specialist.
9.3 The remote platform software requires certain minimum hardware specifications to operate and may not operate if the minimum hardware specifications are not met. Drayage Specialist will specify the minimum hardware specifications from time to time.
9.4 Drayage Specialist will not be liable for any loss and damage suffered by the Customer if:
a) The Customer is not able to access the remote platform software for any reason and/or
b) The Remote Platform software is not operable for any reason
10. ACKNOWLEDGEMENTS AND WARRANTY
The Customer acknowledges and agrees that subject to:
10.1 Any timeframes provided by Drayage Specialist to The Customer in relation to the Services are estimates only and are not binding on Drayage Specialist;
10.2 The Services will not be Error free;
10.3 Drayage Specialist makes no representation and gives no warranty that the Services will be free from defects or fit for any particular purpose;
10.4 Drayage Specialist makes no representation and gives no warranty in relation to the suitability or performance of any third-party service provider referred to The Customer by Drayage Specialist;
10.5 Drayage Specialist Service Providers may be unavailable from time to time without notice (such as in the event of illness) or by prior arrangement with The Customer. Confirmed absences of one day or longer will give rise to a pro-rata reduction in the Customer’s monthly account.
10.6 A fair use policy for all Drayage Specialist BPO services applies in that Drayage Specialist Service Providers will be available to work the agreed hours and/or complete such projects and/or tasks as reasonably assigned to them in a reasonable period of time;
10.7 The Customer may incur additional third-party license expenses not known or anticipated at the time of signing this agreement
10.8 Drayage Specialist may use the Customer’s name and trademark on advertising or promotional material, and may disclose that the Customer is a customer of Drayage Specialist.
11. LIMITATION OF LIABILITY
11.1 Drayage Specialist is not liable for any errors, omissions, inaccuracies or incorrect conclusions with respect to the quality, character, qualifications or experience of any Drayage Specialist Service Provider.
11.2 Drayage Specialist is not liable for any loss, damage, costs or compensation (whether direct or indirect) which may be suffered by the Customer or for which the Customer may become liable arising from:
a) The introduction by Drayage Specialist of Drayage Specialist providers to the Customer (or any delay in such introduction); and
b) The failure of any Drayage Specialist Provider to accept an offer of an assignment; and
c) The performance of any Drayage Specialist Provider who accepts an assignment with the Customer
d) The Customer indemnifies Drayage Specialist in respect of loses, liabilities or claims arising from or related to:
i) Any acts or omissions of any Drayage Specialist Service Providers when performing his or her obligations with the Customer; and
ii) Any damage to property because of the performance of any obligations by a Drayage Specialist Service Provider;
iii) The Customer indemnifies Drayage Specialist in respect of any claims by a Drayage Specialist Service Provider arising from the termination of the Drayage Specialist Service Provider Assignment by the Customer and/or any breaches of laws applicable in any jurisdiction in which the Drayage Specialist Service Provider may operate or provide Services.
iv) The limitations set out in this clause 9 are an aggregate limit for all claims, whenever made.
v) Any claim by the Customer against Drayage Specialist for loss or damage however caused (including by the negligence of Drayage Specialist), suffered by the Customer in connection with this agreement must be made within six months of the Customer becoming entitled to make the claim and any claim not made within six months is absolutely barred.
11.3 Consequential loss
a) Subject to clause 8, Drayage Specialist is not liable for any Consequential Loss however caused (including by the negligence of Drayage Specialist), suffered or incurred by the Customer in connection with this agreement.
b) Consequential Loss in clause 9.3 means:
i) Consequential loss;
ii) Indirect loss;
iii) Loss of revenues;
iv) Loss of reputation;
v) Loss of profits;
vi) Loss of bargain;
vii) Loss in connection with third-party claims;
viii) Loss of actual or anticipated savings;
ix) Lost opportunities, including opportunities to enter into arrangements with third parties;
x) Loss or corruption of data; and
xi) Cost of replacement systems.
12. FORCE MAJEURE
Drayage Specialist will not be:
d) in breach of this agreement as a result of; or
e) liable for, any failure or delay in the performance of Drayage Specialist’s obligations under this agreement to the extent that such failure or delay is wholly or partially caused, directly or indirectly, by a Force Majeure Event or any act or omission of the Customer.
a) The laws of the United States of America governs this agreement.
b) Each party irrevocably submits to the non-exclusive jurisdiction of the courts of the United States and courts competent to hear appeals from those courts.
c) If the Competition and Consumer Act or any other legislation states that there is a guarantee in relation to any good or service supplied by Drayage Specialist in connection with this agreement and Drayage Specialist’s liability for failing to comply with that guarantee cannot be excluded but may be limited, and instead Drayage Specialist’s liability for such failure is limited to, in the case of a supply of goods, Drayage Specialist replacing the goods or supplying equivalent goods or repairing the goods, or in the case of a supply of services, Drayage Specialist supplying the services again or paying the cost of having the services supplied again.
d) Where this agreement contemplates that Drayage Specialist may consent to, elect, determine, approve, nominate, decide or consider any matter or thing, Drayage Specialist may provide such consent or make such election, determination, approval, nomination, decision or consideration in its absolute discretion and conditionally or unconditionally without being required to give reasons or act reasonably, unless this agreement expressly requires otherwise.
e) The Customer must not assign, in whole or in part, or novate the Customer’s rights and obligations under this agreement without the prior written consent of Drayage Specialist.
f) Drayage Specialist may assign its interest under this agreement.
g) Time is not of the essence in the performance of obligations under this agreement except in relation to performance of payment obligations.
h) Unless expressly stated otherwise, this agreement does not create a relationship of employment, trust, agency or partnership between the parties.
i) Each provision of this agreement will be read and construed as a separate and severable provision or part and if any provision is void or otherwise unenforceable for any reason then that provision will be severed and the remainder will be read and construed as if the severable provision had never existed.
j) This agreement represents the parties’ entire agreement, and supersedes all prior representations, communications, agreements, statements and understandings, whether oral or in writing, relating to its subject matter.
k) Drayage Specialist may subcontract the performance of all or any part of Drayage Specialist’s obligations under this agreement.
l) A right under this agreement may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in the waiver.
Additional Services means the IT support services or VoIP services set out in the Addendum Business Day means a day that is not a Saturday, Sunday or a public holiday in the United States.
Drayage Specialist Service Provider means M World Corp Orlando, FL doing business as Drayage Specialist Services.
Drayage Specialist Services Means a Drayage Specialist employee or any individual who provides their services to the Customer through Drayage Specialist in accordance with Drayage Specialist LLC terms and conditions of engagement and this Agreement.
Drayage Specialist Material means any material provided by or to which access is given by Drayage Specialist to the Customer for the purposes of this agreement including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means. Commencement Date means the commencement date set out in the Schedule.
Confidential Information of a party means the terms of this agreement and any information:
a) relating to the business and affairs of that party
b) relating to the customers, clients, employees, subcontractors or other persons doing business with that party;
c) which is by its nature confidential;
d) which is designated as confidential by that party; or
e) which the other party knows or ought to know, is confidential, and includes all trade secrets, knowhow, financial information and other commercially valuable information of that party, and in the case of Drayage Specialist, includes Drayage Specialist Material and the Fees and in the case of the Customer, includes the Customer Data.
Customer means the customer specified in the Schedule.
Customer Material means the Customer Data and any material provided by or to which access is given by the Customer to Drayage Specialist for the purposes of this agreement including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, trademarks, logos, schedules and data stored by any means.
Fees means the fees set out in the Addendum
Force Majeure Event means any occurrence or omission outside a party’s control and:
a) A physical natural disaster including fire, flood, lightning or earthquake;
b) War or other state of armed hostilities (whether war is declared or not), insurrection, riot, civil commotion, act of public enemies, national emergency (whether in fact or in law) or declaration of martial law;
c) Epidemic, pandemic or quarantine restriction;
d) Ionizing radiation or contamination by radioactivity from any nuclear waste or from combustion of nuclear fuel;
e) Confiscation, nationalization, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government agency;
f) Law taking effect after the date of this agreement;
g) Disruption or unavailability of the internet;
h) Strike, lock-out, stoppage, labor dispute or shortage including industrial disputes that are specific to a party or the party’s subcontractors; and failure of a third-party service provider to Drayage Specialist to provide services, including hosting services.
Insolvency Event in the context of a person means:
a) A liquidator, receiver, receiver and manager, administrator, official manager or other controller (as defined in the Corporations Act), trustee or controlling trustee or similar official is appointed over any of the property or undertaking of the person;
b) The person or the person’s property or undertaking becomes subject to a personal insolvency arrangement under Bankruptcy Act or a debt agreement under any part Bankruptcy Act;
c) The person is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts within the meaning of the Corporations Act or is presumed to be insolvent under the Corporations Act;
d) The person ceases to carry on business; or
e) An application or order is made for the liquidation of the person or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of the person, otherwise than for the purpose of an amalgamation or reconstruction.
Intellectual Property Rights means all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, moral right, patent, registered or unregistered trade mark, registered or unregistered design, registered or unregistered plant breeder’s right, trade secret, knowhow, right in relation to semiconductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of such rights.
Addendum A Services and non-binding service levels
In this section:
1.1 The Services are the services provided to the Customer by Drayage Specialist in response to the Customer’s request for services and as agreed in accordance with this contract.
1.2 Administrative and office support tasks undertaken by an Administrative Service Provider may include:
- Fielding telephone calls;
- Word processing;
- Electronic filing, faxing and emailing;
- Internet research;
- Data entry;
- Drafting correspondence and/or reports;
- Maintain calendar;
- Industry specific software applications* (subject to training provided by the Customer)
1.3 Specialist and professional support tasks undertaken by a Specialist Service Provider may include:
- Customer Service work
- Graphic design work
- Office management work
- Data Entry work
- Marketing management work
- PR management work
- Accounting work
- Dispatching work
- Industry specific services* (subject to training provided by the Customer)
2 Support Hours
During the Term, Drayage Specialist will provide the Customer with Support Services on Business Days from 9.00am to 5.00pm.
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