Analytics Services
Professional Standard. Orchard Analytics will provide the services identified in the Statement of Work in a professional manner and in accordance with applicable professional standards.
Change Request
A "Change Request" is any request for work outside the scope of the Statement of Work.
If such a request is made, Orchard Analytics will notify the Client that it is a Change Request. If the Client still wants to proceed with the Change Request, Orchard Analytics will provide a price estimate to the Client. Upon approval of the Change Request’s scope and price, Orchard Analytics will incorporate the work into the schedule. The Client understands that the schedule and/or cost may be affected depending on the size or volume of Change Requests.a
Payment
Payment. Payments are accepted via check or ACH/wire or other widely utilized payment companies such as Bill.com or Ramp.com.
Invoice. Orchard Analytics will invoice the Client according to the Statement of Work. Client shall pay all invoices within 30 days of receipt.
Expenses. In addition to Orchard Analytics' fees, the Client will be invoiced, upon written Client approval, for Orchard Analytics' expenses. All approved expenses will be invoiced to Client without markup.
Taxes. Client is responsible for paying all applicable taxes, including sales, use and value added taxes.
Late Payment. Client understands that Orchard Analytic remains responsible for paying its employees and/or contractors regardless of Client’s payment to Orchard Analytics. Client further understands the financial pressures that late payments can cause, and agrees that due to these pressures and other harms, such as lost opportunities and interest, overdue balances may be charged a monthly service fee of 1.5% (or the greatest amount allowed by law). In the event of late payment, Orchard Analytics reserves the rights to (a) suspend services until full payment has been made or (b) require Client to pre-pay for any future services.
Delivery
Timeframe. Orchard Analytics will use commercially reasonable efforts to perform the Services within the schedule outlined in the Statement of Work. Orchard Analytics' delivery timeframe depends upon the Client's prompt response to any questions, requests for Client materials, and general cooperation throughout the process.
Orchard Analytics Agents. Orchard Analytics may hire third-party analysts or service providers ("Analytics Agents") as independent contractors to provide the services described herein.
Testing & Acceptance. When applicable, Orchard Analytics shall use commercially reasonable efforts to test Deliverables before providing them to the Client.
The Client shall promptly review all Deliverables, and must notify Orchard Analytics of any failure to conform to the Statement of Work within 5 business days of receipt. If Orchard Analytics does not receive a notification within 5 business days of receipt, the Deliverable will be deemed accepted. The Client's notification must clearly identify the problems with the Deliverable.
Client Responsibilities. Client must promptly: (a) coordinate any decision-making activities with third parties; (b) provide Client Data in a form suitable for reproduction or incorporation into the Deliverables; (c) review the Deliverables; and (d) and promptly respond to questions from Orchard Analytics when asked. Additional client responsibilities may be outlined within the attached Scope of Work document(s).
Rights in Deliverables
Client IP. Upon Client acceptance of all Final Deliverables, Orchard Analytics hereby grants to Client a non-exclusive, unrestricted, royalty-free, worldwide, perpetual, irrevocable license (with the right to grant sublicenses through multiple tiers) to make, have made, use, offer for sale, sell, import, reproduce, create derivative works based upon, publicly distribute, publicly perform, publicly display, and otherwise exploit Final Deliverables. As a license-holder of the IP rights, Client shall be free to license, make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit the IP in the Final Deliverables.
Orchard Analytics IP. Client acknowledges that all methodologies, strategies, designs, templates, software (and any modifications thereto), code, pre-existing IP of Orchard Analytics (and any modifications thereto), general knowledge, skills, experience, ideas, concepts, know-how and techniques used by Orchard Analytics in the course of performing services hereunder are all part of Orchard Analytics’ proprietary IP, and are owned exclusively by Orchard Analytics.
Project Disclosure. Orchard Analytics may publicly describe its role in the Project with the Client’s written approval .
Orchard Analytics and Client Relationship
Non-Exclusive. This Agreement does not create an exclusive relationship. The Deliverables are not a "work for hire" under Copyright Law.
No Assignment. Except as set forth herein, neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party. Any such attempted assignment will be void ab initio. Consent is not required for a disposition of substantially all assets of the assigning party's business.
Confidential Information. Each party shall maintain Confidential Information in strict confidence, and shall not use Confidential Information except (a) as necessary to perform its obligations under the Agreement, or (b) as required by a court or governmental authority. Confidential Information includes proprietary technical and business information and any other information marked "Confidential."
Exception. Confidential Information does not include (a) any information that is in the public domain, (b) becomes publicly known through no fault of the receiving party, or (c) is otherwise known by the receiving party before obtaining access to it under this Agreement or properly received from a third party without an obligation of confidentiality.
No Solicitation
Non-Solicit. During the term of this Agreement, and for a period of 12 months after its expiration, neither party shall solicit any of the other party’s employees, without the prior written consent of the other party. "Solicit" is defined to include (but not to be limited to): recruit, engage, or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire, or any other basis; or attempt to recruit, engage, or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire, or any other basis.
Termination
Discretionary Termination. Either party may, upon ten business days’ written notice to the other party, terminate this Agreement. IF: Client or Orchard Analytics uses this discretionary termination provision, THEN: Orchard Analytics will retain all payments already made as of the notification date, and Client shall pay Orchard Analytics (a) for all approved expenses incurred as of the date of notification of termination and (b) for any hours worked but not yet invoiced at the hourly rate defined in the Statement of Work.
Termination for Bankruptcy. Subject to any restrictions imposed by law, either party may immediately terminate this Agreement, if the other party either: (1) ceases to do business in the normal course; (2) becomes insolvent; (3) admits in writing its inability to meet its debts or other obligations as they become due; (4) makes a general assignment for the benefit of creditors; (5) has a receiver appointed for its business or assets; (6) files a voluntary petition for protection under the bankruptcy laws; (7) becomes the subject of an involuntary petition under the bankruptcy laws that is not dismissed within 60 days.
Termination for Breach. If a material breach of this Agreement is not cured within 10 business days after a party's receiving written notice of the breach, then the non-breaching party may terminate this Agreement immediately upon notice.
Termination Procedure. Upon expiration or termination of this Agreement: (a) each party shall return, erase, or destroy any remaining Confidential Information of the other party in its possession, and (b) other than as expressly provided in this Agreement, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
Risk Allocation
Orchard Analytics Representations
Orchard Analytics represents and warrants to Client that:
For any Final Deliverable that includes the work of independent contractors or third-party material, Orchard Analytics shall secure sufficient rights for Client to use the Final Deliverables for their intended purpose.
To the best of Orchard Analytics' knowledge, the final Deliverables will not infringe upon the IP rights of any third party.
LIMITATION OF LIABILITY
The services and the work product of Orchard Analytics are sold "as is." In all circumstances, Orchard Analytics' maximum liability to Client for damages for any and all causes whatsoever, and Client's maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to Orchard Analytics' net profit in connection with services provided during the preceding 12 months. Although Orchard Analytics will perform services in accordance with this Agreement, it cannot, due to the nature of its work, guarantee any particular outcome or result.
In no event shall Orchard Analytics be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by Orchard Analytics, even if Orchard Analytics has been advised of the possibility of such damages.
LIMITED WARRANTY
Except for the express representations and warranties stated in this agreement, Orchard Analytics makes no warranties whatsoever. Orchard Analytics explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.
Force Majeure
Either party may invoke Force Majeure to excuse the failure of its timely performance, if such failure was caused by: fire; flood; hurricane, tornado, or other severe storm; earthquake; act of war; sabotage; terrorism; riot; interruption or failure of electrical or telecommunications service (for example, Internet failures); or failure of suppliers, subcontractors, and carriers to substantially meet their performance obligations.
Failure to make a payment may only be considered a Force Majeure event if caused by an interruption in a third-party payment system that otherwise qualifies as a Force Majeure event.
A party invoking Force Majeure to excuse its failure of timely performance must show that the Force Majeure event(s) and their relevant effects (i) were beyond the invoking party's reasonable control and (ii) could not have been avoided through the exercise of due care by the invoking party.
General Terms
Notices
All notices shall be sent by email. Permissible addresses for notice include those stated in this Agreement and any other address reasonably communicated.
A notice that is sent by email but is not read by the addressee is nevertheless effective if, but only if, it has been (a) sent from an email account that has been designated for notice and (b) delivered to an email account that has been designated for notice. Email accounts designated for notice are identified at the top of this Agreement, and may be amended only by written notice.
Dispute Resolution
Early Neutral Evaluation. At the request of Orchard Analytics, the parties will submit any dispute between them, arising out of or relating to this Agreement or any transaction or relationship arising from it, to nonbinding early neutral evaluation, in New York, in accordance with the Early Neutral Evaluation procedures of the American Arbitration Association.
Arbitration. At the request of Orchard Analytics, the parties will submit any dispute between them, arising out of or relating to this Agreement or any transaction or relationship arising from it, to binding arbitration in New York, through the American Arbitration Association. Both parties in any dispute resolved by arbitration or litigation shall bear their own costs and attorneys' fees.
Jurisdiction. In the event that Orchard Analytics does not elect to submit a dispute between the parties to Early Neutral Evaluation or Arbitration, the parties irrevocably consent to the jurisdiction of the state and federal courts located in New York, New York. The parties hereby waive any jurisdictional or venue defenses and consent to service of process by certified mail.
Interpretation
Governing Law. This Agreement will be governed by the laws of the commonwealth of New York without regard to its conflict or choice of law rules.
Analytics Terminology. Any analytics terminology in the Statement of Work is defined according to standard analytics industry usage. Any dispute as to the meaning or scope of analytics terminology will be determined in good faith by Orchard Analytics.
IF / THEN Construction. Use of capitalized "IF:" and "THEN:" in a sentence is intended only to enhance readability. It has no special meaning apart from its lower case meaning.
Modification & Waiver. Any modification of this Agreement must be in writing. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
Severability. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will remain in full force and effect.
Mutual Drafting. Any ambiguity or inconsistency in this Agreement is to be resolved in accordance with the most reasonable construction and not strictly for or against either party by virtue of that party's authorship.
Headings. Section headings are provided for convenience only and do not affect the meaning of any terms.
Integration. This Agreement comprises the entire understanding of the parties and supersedes all prior agreement and understandings.
Definitions
Client Data - all data provided by the Client for use in the preparation of and/or incorporation in the Deliverables.
Deliverables - the services and work product specified in the Statement of Work to be delivered by Orchard Analytics to Client, in the form and media specified in the Proposal.
Final Deliverables - the final versions of Deliverables provided by Orchard Analytics and accepted by Client.
Statement of Work - the statement of work will be shared with the client prior to the start of work and includes an approximate description of the work that will be completed as well as an estimation of the total cost OR the hourly payment rate.