Warranties: Services

Commercial Contract

Warranties: Services

With respect to services, the parties may agree to certain warranties applicable to the contracted services to be performed, including that the services will be performed by properly trained and equipped personnel, performed in accordance with industry standards and in compliance with applicable law, and performed in a professional or a workmanlike manner.

Professionally Performed

The following exemplars stress the requirement that the contracted services be performed in a “professional” manner:

Exemplar C79C-1

Supplier warrants to Customer that any Services provided hereunder will be performed in a first-class, professional manner, in strict compliance with the Specifications, and with the care, skill, and diligence, and in accordance with the applicable standards, currently recognized in Supplier’s profession or industry. If Supplier fails to meet applicable professional standards, Supplier will, without additional compensation, promptly correct or revise any errors or deficiencies in the Services furnished hereunder.

Exemplar C79C-2

Service provider represents and warrants that all Services will be performed professionally with commercially reasonable care and skill by qualified individuals.

Exemplar C79C-3

Contractor represents and warrants that it will perform the Services in a timely manner and with a high degree of professional skill and care using customarily accepted good and sound professional practices and procedures in the industry. While at any Customer site, Contractor and its Subcontractors shall comply with Customer's policies, rules and reasonable requests regarding personal and professional conduct (including the wearing of an identification badge and adhering to safety, behavior and security practices and procedures) generally applicable to such premises.

Exemplar C79C-4

Contractor warrants that, during the terms of the Agreement, the Service provided hereunder will be performed: (a) in a professional manner consistent with generally accepted industry standards reasonably applicable to the provision of the Service, (b) substantially in accordance with technical manuals and user documentation relating to the operation and use of the Service that are provided by Contractor to Customer under the Agreement, as reasonably updated by Contractor from time to time, and (c) in accordance with the service level requirements as set forth in the Service Description Guide for services ordered under a Sales Order Form.

Conformance with Specifications

Determining whether and to what extent a contracted service has been malperformed or underperformed can be aided by measuring delivered performance against mutually agreed written metrics:

Exemplar C79C-5

Contractor represents and warrants the Services and Deliverables will conform in all material respects to the specifications and requirements therefor as set forth in SOWs and/or this Agreement and will be free of material defects for ninety days commencing with Final Acceptance of the Services and Deliverables unless otherwise specified in the SOW (the "Warranty Period").

Authority and Ability to Perform

In the following exemplars, the customer is entitled to rely on certain basic warranties regarding the ability of the service provider (both in terms of skill and legal authority/capacity) to perform and deliver the contracted services:

Exemplar C79C-6

Contractor represents and warrants that: (i) it has the right to enter into the Agreement; (ii) the Services will conform with the applicable description and specifications set forth in any documentation provided by Contractor hereunder; and (iii) in using and making available (as appropriate) the Services, it will comply with all applicable laws, regulations and directives.

Exemplar C79C-7

Contractor represents and warrants that it is authorized to execute the Agreement, is qualified to perform the Services, has all necessary licenses, consents, approvals, permits and authorizations required to perform the Services, has the right to provide the Services without violating any obligation to or any rights of any third party, including, without limitation, any third party's intellectual property rights, will perform all Services hereunder in accordance with any and all applicable laws, regulations, rules and orders, and has good title to the goods, materials, supplies and equipment constituting the Services, free from all liens, encumbrances and claims of others.

Exemplar C79C-8

The parties represent and warrant that: (a) each has the full power and authority to enter into this Agreement; (b) this Agreement is duly authorized by all necessary action and has been duly executed and delivered; and (c) neither party has entered into any agreement with any other entity that contains restrictive provisions regarding confidentiality and/or non-competition that may impair their ability to perform their specific obligations under the terms of this Agreement.

Exemplar C79C-9

Contractor represents and warrants that it or its personnel will perform the Services: (a) in a good, timely, efficient, professional and workmanlike manner; (b) with at least the same degree of accuracy, quality, efficiency, completeness, timeliness and responsiveness as are equal to the accepted industry standards applicable to the performance of the same or similar services; and (c) using personnel who are fully familiar with the technology processes, procedures and equipment to be used to deliver the Services.

Exemplar C79C-10

Contractor represents and warrants the following:

(a) Contractor’s execution, delivery and performance of this Agreement: (i) has been authorized by all necessary corporate action, (ii) does not violate the terms of any law, regulation, or court order to which Contractor is subject or the terms of any material agreement to which Contractor or any of its assets may be subject and (iii) are not subject to the consent or approval of any third party;

(b) This Agreement is the valid and binding obligation of Contractor, enforceable against Contractor in accordance with its terms;

(c) Such Party is not subject to any pending or threatened litigation or governmental action which could interfere with such Party's performance of its obligations hereunder; and

(d) Both Parties will perform their respective obligations under this Agreement in compliance with all laws, rules, regulations, and other legal requirements applicable to the Party.

Conflict of Interest

In certain circumstances, the service provider may be required to warrant the absence of any contractual restrictions that may preclude it from performing its obligations owed to the customer under the parties’ contract:

Exemplar C79C-11

Supplier represents and warrants that (i) it has not entered into any agreement with any other entity that contains restrictive provisions, including confidentiality and/or non-competition, that may impair its ability to perform its obligations under this Agreement, and (ii) the performance of its obligations under this Agreement shall not breach or violate any other agreement to which it is a party.

In the following exemplar, the service provider also warrants that it has not entered into third-party agreements that may impair or otherwise adversely affect its ability to perform the contracted services:

Exemplar C79C-12

Company represents and warrants that: (i) it has the full power and authority necessary to enter into this Agreement and to perform its obligations hereunder (including granting any intellectual property rights or licenses hereunder) and under each SOW, including the Services; (ii) this Agreement has been duly authorized by all necessary action on the part of Company and has been duly executed and delivered by it; (iii) it has not entered into any agreement with any other entity that contains restrictive provisions regarding confidentiality and/or non-competition that may impair its ability to perform any Project hereunder; (iv) the execution by Company of this Agreement and the performance of its obligations hereunder shall not breach or violate any other agreement to which it is a party; and (v) Company has, and shall maintain throughout the term of this Agreement, all permits, licenses, certifications and the like necessary to perform each Project hereunder.

In the following exemplar, the parties clarify that a contractor does not breach its “no-conflict-of-interest” warranty by providing services to a competitor of the customer:

Exemplar C79C-13

Contractor represents and warrants that its delivery of the Services will not in any way conflict with any continuing interests or obligations of Contractor or its employees or contractors. Contractor further warrants that during the term of this Agreement, Contractor, and those of its employees and contractors assigned to providing any Services to Customer, will refrain from any activities which could reasonably be expected to present a conflict of interest with respect to Contractor’s relationship with Customer, Customer’s business interest or its provision of the Services to Customer but for the avoidance of doubt, this shall not prevent the Contractor from providing the Services to a competitor of Customer, provided that Contractor does not violate the terms of this Agreement during the performance of or as a result of those services.

Integrated Exemplars

The following comprehensive exemplars integrate many of the warranty types discussed above, including authority, ability, good title, and compliance with applicable standards and law:

Exemplar C79C-14

Contractor warrants that (i) the Services will be performed with reasonable skill and care by personnel who are adequately skilled and trained for the tasks to which they have been allocated, (ii) the results of the Services during a period of ninety (90) days from the date of acceptance will comply with the requirements set out in the SOW in all material respects, unless another warranty period is specified in an applicable SOW, (iii) the deliverables or other results of the Services shall be free of all liens, claims, and encumbrances, and Contractor has all the rights, titles, and interests necessary to grant the rights and licenses set forth herein to Customer, and (iv) Contractor will not include any third party or open source software in the results of the Services without the prior consent of Customer (which consent may be given in the applicable SOW). In case of breach of the aforementioned warranties, Contractor shall make all reasonable efforts to rectify an error (if rectifiable) within a reasonable time.

Exemplar C79C-15

Contractor warrants and represents that (i) individuals of suitable training and skill will provide the Services in a professional, workmanlike manner consistent with this Agreement; (ii) that its performance of Services does not and will not violate any copyright, patent, trade secret, trademark or other intellectual property or proprietary right of any third-party; (iii) that its actions and performance of the Services are and will be in full compliance with (1) all applicable federal, state, and local requirements, including but not limited to, privacy laws, (2) all applicable state laws and regulations, and (3) any valid and effective order (including regulatory orders), verdict, judgment, or consent decree or agreement; (iv) that it has, and will maintain throughout the term of this Agreement, all licenses, franchises, permits, authorizations and approvals materially necessary for the lawful conduct of its business, and (v) that there is no action, suit, claim, investigation or proceeding pending or, to the best of its knowledge, threatened against it that, if adversely decided, might adversely affect its ability to enter into this Agreement or performance of its obligations hereunder.

Exemplar C79C-16

Supplier represents and warrants that: (a) individuals of suitable training and skill will perform the requirements hereunder in a diligent and workmanlike manner in accordance with good industry practices, (b) that its performance of Services and/or provision of awards and Buyer’s subsequent use of such Services and awards does not and will not violate any copyright, patent, trade secret, trademark or other intellectual property or proprietary right of any third-party (c) that Supplier’s actions and performance of the Services are and will be in full compliance with all applicable federal, state, and local requirements, including but not limited to, federal banking laws, federal consumer protection and privacy laws; all applicable state laws and regulations; any valid and effective order (including regulatory orders), verdict, judgment, or consent decree or agreement, (d) that it has, and will maintain throughout the term of this Agreement, all licenses, franchises, permits, authorizations and approvals materially necessary for the lawful conduct of its business, and (e) that there is no action, suit, claim, investigation or proceeding pending or, to the best of its knowledge, threatened against it that, if adversely decided, might adversely affect Supplier’s ability to enter into this Agreement or performance of its obligations hereunder.

Exemplar C79C-17

Service Provider hereby warrants and undertakes:

(i) that it has the requisite skill and expertise to perform the services contemplated by this Agreement and that it will perform such services in accordance with the highest professional standards applicable to the performance of such services;

(ii) that it has the full power to enter into this Agreement and to carry out its obligations under this Agreement;

(iii) that it is not aware as of the date of this Agreement of anything within its reasonable control which might or will adversely affect its ability to perform its obligations under this Agreement; and

(iv) that the performance of the services by Service Provider hereunder will not violate any contractual obligations or confidential relationships that Service Provider may have to or with any third party.

Special Service Warranties

Beyond the basic warranties discussed above, a service provider may also warrant additional items important to the customer, including the following:

Access to Adequate Insurance

Exemplar C79C-18

Provider warrants to Company that: (i) Provider shall perform the Services in a professional and workmanlike manner in accordance with this Agreement; (ii) Provider’s Intellectual Property does not now, and shall not during the Term, infringe on the rights of any third-party; (iii) provider has the requisite authority to enter into this Agreement, has all the rights, titles, and interests necessary to grant the rights and licenses set forth herein to Company, and is lawfully entitled to supply the Services to Company and Company’s Eligible Users; (iv) Provider will use reasonable skill and care to perform the Services in accordance with industry practice; (v) Provider will comply with all laws and regulations applicable to Provider relating to Provider’s provision of the Services; and (vi) Provider shall maintain amounts and types of insurance coverage appropriate to similarly situated businesses in Provider’s industry and Company may request from Provider, and Provider shall provide, a certificate of insurance from Provider’s insurers no more frequently than once per year.

No Harmful Code

Exemplar C79C-19

The Services and any Deliverables will not contain any computer instructions, circuitry or other technological means whose purpose is to disrupt, damage or interfere with Customer's use of the Services, Deliverables or its computer and telecommunications facilities.

Infringement of Intellectual Property

Exemplar C79C-20

Consultant represents and warrants to Client that:

(i) it shall not, without Client's prior written consent and without complying with Client's security policies and procedures, access or remove from Client's premises any Confidential Information, computer systems, and/or other property of Client, its affiliates, employees, franchisees, sales associates, brokers, or customers;

(ii) it shall not introduce into Client's computer systems, databases, or software, any virus or any other contaminants (including, but not limited to, codes, commands, instructions, devices, techniques, bugs, web bugs, or design flaws) that may be used to access, alter, delete, threaten, infect, assault, vandalize, defraud, disrupt, damage, disable, inhibit, or shut down Client's computer systems, databases, or software, or other Client information, software, or property, in a manner other than in accordance with the terms of this Agreement; and

(iii) the Services shall not violate or infringe upon any patent, copyright, trademark, service mark, trade secret or other proprietary rights of any third party, or breach any contract by which Consultant is bound. Consultant further represents and warrants that the Services will be provided in conformance with the requirements of this Agreement, including applicable Client specifications, guidelines and standard operating procedures including, but not limited to those relating to, control procedures, move to production procedures, coding and data base standards and operation request forms and with all applicable codes, standards, laws and regulations.

Service Levels

Exemplar C79C-21

Seller represents and warrants that it has reviewed the specifications and requirements of the Services and it has the expertise and resources necessary to undertake and complete the Services in accordance therewith and in the applicable timeframe, if any, specified in the Statement of Work. Seller warrants that (a) its Services will meet or exceed any service levels that may be set forth in an applicable Statement of Work and that its Services will be performed in a professional, diligent and workmanlike manner consistent with the highest industry standards for the performance of such Services and (b) in providing the Services, Seller and Seller’s personnel will comply with all applicable laws and obtain all permits, approvals and licenses that pertain to, the provision of the Services. In the event of a breach of the warranties in this Section, without limiting Customer’s other rights and remedies, Seller will re-perform the defective Services at no charge to Customer within the time limits applicable to the Service under the applicable Statement of Work at the applicable service levels.

Foreign Corrupt Practices

Exemplar C79C-22

Vendor warrants that it and its Representatives will comply with all federal, state and local laws, ordinances, codes, regulations, rules, policies, regulations and procedures, including, without limitation, anti-bribery laws, including the U.S. Foreign Corrupt Practices Act (“FCPA”), all Presidential Executive Orders, the C-TPAT program and the requirements of any other public or private authority of any jurisdiction, as applicable to the performance by Vendor of its duties and responsibilities under this Agreement or any SOW (“Applicable Laws”).

1.1 Vendor represents and warrants that Vendor has not paid, and will not pay, money or other consideration for the purpose of assisting Company to obtain or retain business in violation of any law, including the FCPA or other applicable anti-bribery laws, to any of the following:

1.1.1 government officials (including an employee of a government-owned or controlled company);

1.1.2 public international organizations, such as the United Nations or World Bank;

1.1.3 political parties or party officials;

1.1.4 candidates for political office; or

1.1.5 other person that Vendor knows will offer, give, or promise, directly or indirectly, all or a portion of such money or other consideration to any of the persons or organizations identified above.

1.2 Vendor represents and warrants that it does not know and has no reason to believe that any Vendor Representative or other person retained by Vendor has violated, or caused Company to violate, the FCPA or other applicable anti-corruption laws. Vendor agrees to promptly report any violations of any anti-corruption laws in connection with this Agreement to Company at ethics@Company.com.

1.3 Vendor warrants that it will at all times act consistently with Company’s global anti-corruption policy. If the Services require engagements with government authorities (i.e., customs, import/export activities, and/or obtaining licenses or permits from governmental authorities), the Vendor Representative providing principal support for the Company account shall take Company's on-line anti-corruption training on an annual basis.

1.4 Vendor warrants that it will: (a) have obtained all Authorizations; (b) maintain, in full force and effect, all Authorizations during the term of this Agreement until all the Deliverables have been provided to Company and Services performed under any SOW, and for so long as required under applicable law; (c) coordinate with Company to the extent necessary to obtain Company's or End User’s cooperation in obtaining any Authorizations; and (d) inform Company immediately of the expiration, termination, non-renewal, denial or revocation of any Authorization.

1.5 Vendor warrants that it and its Representatives will not infringe upon the Intellectual Property Rights of a third party in the course of providing the Services, or disclose or provide to Company or any End User any Confidential Information, except to the extent Vendor has the right to disclose and permit third parties to use (as applicable) such Confidential Information.

1.6 Vendor warrants that it and its Representatives will not make any representations or warranties to End User regarding the Services, any Vendor Work Product, Company or any Product(s) or services and will not use any information obtained in the course of providing the Services to persuade or attempt to persuade any End Users to utilize or purchase a competing or alternative service from Vendor.

1.7 Vendor warrants that it will use qualified individuals with suitable training, experience, skill and licenses to perform its obligations under this Agreement and any SOW. Such individuals shall be subject to approval by Company (and End User, if required pursuant to a SOW) and shall be promptly replaced at Company’s or End User's request. Company’s failure to approve or request to remove any individual pursuant to this Section shall not: (a) be considered a breach of this Agreement or a basis for an equitable adjustment in the fees payable under this Agreement; or (b) relieve Vendor from its obligations under this Agreement.

1.8 Vendor warrants that Deliverables will: (a) be free from all material defects in design, materials, workmanship, performance and title; and (b) meet the applicable specifications, drawings, samples, descriptions and requirements specified in this Agreement and the applicable SOW.

1.9 Vendor warrants that it will provide the Services in a manner consistent with the applicable SOW and industry standards reasonably applied to the performance of such work.

1.10 Vendor warrants that its Representatives, if any, will comply with End User's requests, rules and regulations regarding: (a) conduct of Vendor's Representatives; (b) security at End User sites or in connection with End User's systems, and (c) document retention. Unless otherwise agreed by Company, Vendor's Representatives shall observe the working hours, working rules, and holiday schedules of End User while working on an End User's premises.

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Warranties: Services

Commercial Contract

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