By Supplier. Supplier covenants and agrees with Michaels that during the Term and the Termination Assistance Period: (a) Supplier shall provide the Services with promptness, diligence and in a professional manner, in accordance with the practices and professional standards used in well-managed operations performing services similar to the Services, and Supplier shall use adequate numbers of qualified individuals with suitable training, education, experience and skill to perform the Services; (b) Supplier shall comply with all Laws applicable to Supplier in the performance of this Agreement and shall obtain all applicable Supplier Consents, Supplier Government Approvals and permits and licenses required of Supplier in connection with its obligations hereunder; (c) the Services, Supplier Software, Supplier Equipment, Commissioned Materials, Work Product and any other resources or items used by Supplier or furnished to Michaels by Supplier or Supplier Agents in providing the Services shall not infringe upon the proprietary rights of any third party (except to the extent such claim is based on: (i) a modification to the Services, Supplier Software, Supplier Equipment, Commissioned Materials, Work Product: (A) by Michaels or Michaels Agents (other than Supplier); or (B) that was not made by or at the written direction of the Supplier; (ii) compliance by Supplier with written specifications provided by Michaels; (iii) Michaels’ combination of the Services, Supplier Software, Supplier Equipment, Commissioned Materials, Work Product with items not provided or recommended by Supplier; (iv) Michaels’ use of the Services, Supplier Software, Supplier Equipment, Commissioned Materials, Work Product other than in a manner that is permitted by this Agreement;(v) infringement arising from Michaels Software or other material provided by Michaels for access and use of Supplier in connection with the Service; provided, that the exclusions described in clauses (i)(B) and (ii) will not apply in the event that Supplier knew, or ought to have known, that such materials infringed upon the proprietary or other rights of a third party); (d) Supplier shall promptly notify Michaels if Supplier learns of any claim, pending or threatened, or any fact upon which a claim could be made, that asserts that the Services, Supplier Software, Supplier Equipment, Commissioned Materials, Work Product and any other resources or items used by Supplier or furnished to Michaels by Supplier or Supplier Agents in providing the Services, or Michaels’ receipt and use of the foregoing as contemplated under this Agreement may infringe upon the proprietary rights of any third party; (e) without limiting Supplier’s obligations under any applicable Statements of Work, Supplier shall take all commercially reasonable best efforts to prevent any viruses, trojan horses, worms, spyware, back doors, email bombs, malicious code or similar items (collectively, “Malware”) to be coded or introduced into the Systems by Supplier or Supplier Agents, and shall use all reasonable efforts to prevent Malware from being introduced into the System by any third parties; provided that in the event that Malware is found to have been introduced into the Systems, Supplier shall use all commercially reasonable best efforts to mitigate the effects of the Malware and, if the Malware causes a loss of operational efficiency or loss of data, mitigate and make all commercially reasonable best efforts to restore such lost data; (f) Supplier shall take all commercially reasonable best efforts to prevent any Software or Equipment that would have the effect of disabling or otherwise shutting down all or any portion of the Services is coded or introduced into the Systems. With respect to any disabling code that may be part of the Software, Supplier shall not invoke such disabling code at any time (whether during or after the Term) for any reason. If at any time the licensor of any Supplier Third Party Software shall invoke or threaten to invoke any disabling code in Supplier Third Party Software licensed to Supplier which could adversely affect the Services, Supplier shall use its best efforts to preclude such action on the part of such licensor; (g) neither Supplier nor any Supplier Agents shall make any unauthorized representations on Michaels’ behalf or about Michaels, nor commit or bind Michaels other than as specifically authorized; (h) Supplier or Supplier Agents shall not, without the prior approval of Michaels (such approval to include where approved as part of an applicable Statement of Work or Project or where such Software is provided to Supplier by Michaels) include in any Commissioned Materials or Michaels Derivative Works any software that is subject to any “copyleft” or other obligation or condition (including any obligation or condition under any “open source” license such as the GNU Public License, Lesser GNU Public License, or Mozilla Public License) that: (i) requires or conditions the use or distribution of such software on the disclosure, licensing, or distribution of any source code for any portion of such software; or (ii) could otherwise impose any limitation, restriction, or condition on the right or ability of Michaels to use or distribute such software; (i) any Commissioned Materials and other deliverables provided by Supplier pursuant to this Agreement shall: (i) when delivered and for an agreed warranty period of three months be free from defects in materials, design, and workmanship;
Appears in 1 contract
By Supplier. Supplier covenants and agrees with Michaels LS&Co. that during the Term and the Termination Assistance Period:
(a) Supplier shall (i) provide the Services with promptness, diligence and in a professional manner, in accordance with the practices and professional standards used in well-managed operations performing services similar to the Services, and Supplier shall (ii) use adequate numbers of qualified individuals with suitable training, education, experience and skill to perform the ServicesServices and (iii) implement service delivery practices that are stable, mature and well-managed;
(b) Supplier shall comply with all Laws applicable to Supplier in the performance of this Agreement and shall obtain all applicable Supplier Consents, Supplier Government Approvals and permits and licenses required of Supplier in connection with its obligations hereunder;
(c) the Services, Supplier Software, Supplier Equipment, Commissioned Materials, Work Product and any other resources or items used by Supplier or furnished to Michaels LS&Co. by Supplier or Supplier Agents in providing the Services (“Materials”), or LS&Co.’s receipt or use of the Materials as contemplated under this Agreement shall not infringe upon the proprietary rights Intellectual Property Rights of any third party (except to the extent such claim is based on: (i) a modification to the Services, Supplier Software, Supplier Equipment, Commissioned Materials, Work Product: (A) by Michaels or Michaels Agents (other than Supplier); or (B) that was not made by or at the written direction of the Supplier; (ii) compliance by Supplier with written specifications provided by Michaels; (iii) Michaels’ combination of the Services, Supplier Software, Supplier Equipment, Commissioned Materials, Work Product with items not provided or recommended by Supplier; (iv) Michaels’ use of the Services, Supplier Software, Supplier Equipment, Commissioned Materials, Work Product other than in a manner that is permitted by this Agreement;(v) infringement arising from Michaels Software or other material provided by Michaels for access and use of Supplier in connection with the Service; provided, that the exclusions described in clauses (i)(B) and (ii) will not apply in the event that Supplier knew, or ought to have known, that such materials infringed upon the proprietary or other rights of a third party);
(d) Supplier shall promptly notify Michaels LS&Co. if Supplier learns of any claim, pending or threatened, or any fact upon which a claim could be made, that asserts that the Services, Supplier Software, Supplier Equipment, Commissioned Materials, Work Product and any other resources or items used by Supplier or furnished to Michaels by Supplier or Supplier Agents in providing the Services, or Michaels’ LS&Co.’s receipt and use of the foregoing Materials as contemplated under this Agreement may infringe upon the proprietary rights Intellectual Property Rights of any third party;
(e) without limiting Supplier’s obligations under any applicable the Statements of Work, Supplier shall take all commercially reasonable best efforts to prevent not, and shall ensure the Supplier Agents shall not, code or introduce into the systems any viruses, trojan horses, worms, spyware, back doors, email bombs, malicious code or similar items (collectively, “Malware”) to be coded or introduced into the Systems by Supplier or Supplier Agents), and shall use all reasonable efforts to prevent Malware from being introduced into the System by any third parties; provided that in the event that Malware is found to have been introduced into the Systems, Supplier shall use all commercially reasonable it best efforts to mitigate the effects of the Malware and, if the Malware causes a loss of operational efficiency or loss of data, mitigate and make all commercially reasonable best efforts to restore such lost datalosses;
(f) Supplier shall take all commercially reasonable best efforts to prevent any not, and shall ensure that the Supplier Agents shall not, code or introduce Software or Equipment that would have the effect of disabling or otherwise shutting down all or any portion of the Services is coded or introduced into the Systems. With respect to any disabling code that may be part of the Software, Supplier shall not invoke such disabling code at any time (whether during or after the Term) for any reason. If at any time the licensor of any Supplier Third Party Software shall invoke or threaten to invoke any disabling code in Supplier Third Party Software CONFIDENTIAL TREATMENT REQUESTED – REDACTED COPY EXECUTION VERSION licensed to Supplier which could adversely affect the Services, Supplier shall use its best efforts to preclude such action on the part of such licensor;
(g) neither Supplier nor any and all Supplier Agents shall not make any unauthorized representations on Michaels’ LS&Co.’s behalf or about MichaelsLS&Co., nor commit or bind Michaels LS&Co. other than as specifically authorized;
(h) Supplier or Supplier Agents shall not, without the prior approval of Michaels (such approval to include where approved as part of an applicable Statement of Work or Project or where such Software is provided to Supplier by Michaels) not include in any Commissioned Materials or Michaels LS&Co. Derivative Works any software that is subject to any “copyleft” or other obligation or condition (including any obligation or condition under any “open source” license such as the GNU Public License, Lesser GNU Public License, or Mozilla Public License) thatwithout LS&Co.’s prior written consent, and to the extent that Supplier uses open source software in the performance of the Services, Supplier shall ensure that such use does not: (i) requires require or conditions condition the use or distribution of such software on the disclosure, licensing, or distribution of any source code for any portion of such software; or (ii) could otherwise impose any limitation, restriction, or condition on the right or ability of Michaels LS&Co. to use or distribute such software;
(i) any Commissioned Materials and other deliverables provided by Supplier pursuant to this Agreement shallshall be: (i) when delivered and for an agreed warranty period of three months be free from material defects in materials, design, design and workmanship;; (ii) in conformance with any applicable documentation, manuals, specifications or requirements; and (iii) free and clear of any liens, claims, charges, debts or other encumbrances; and
(j) unless otherwise agreed by the Parties, with respect to any Commissioned Materials: (i) if there is any defect or nonconformity, upon notice from LS&Co., Supplier shall promptly, at its sole cost and expense, correct or replace any such defect or nonconformity; and (ii) if Supplier fails to do so within 15 days from receipt of notice (or other time period agreed by the Parties), LS&Co. may at its option either obtain from Supplier any amounts reasonably expended to correct or replace such defect or nonconformity, or terminate the applicable New Service Proposal and obtain a refund of amounts paid for such Commissioned Materials.
Appears in 1 contract
Sources: Master Services Agreement
By Supplier. Supplier covenants and agrees with Michaels Chordiant that during the Term and the Termination Assistance Period:
(a) Supplier shall provide the Services with promptness, diligence and in a professional manner, in accordance with the terms of the Lines of Business, Statements of Work and practices and professional standards used in well-managed operations performing services similar to the Services, and Supplier shall use adequate numbers of qualified individuals with suitable training, education, experience and skill to perform the Services;
(b) Supplier shall comply with all Laws applicable to Supplier in the performance of this Agreement and shall obtain all applicable Supplier Consents, Supplier Government Approvals and permits and licenses required of Supplier in connection with its obligations hereunder;
(c) the The Deliverables, Services, Supplier Software, Supplier Tools, Supplier Equipment, Commissioned Materials, Work Product and any other resources or items used by Supplier or furnished to Michaels Chordiant by Supplier or Supplier Agents in providing the Services shall not infringe upon the proprietary rights of any third party party;
(except to the extent such claim is based on: (id) a modification to the The Deliverables, Services, Supplier Software, Supplier Equipment, Commissioned Materials, Work Product: (A) by Michaels or Michaels Agents (other than Supplier); or (B) that was not made by or at the written direction of the Supplier; (ii) compliance by Supplier with written specifications provided by Michaels; (iii) Michaels’ combination of the Services, Supplier SoftwareTools, Supplier Equipment, Commissioned Materials, Work Product and any other resources or items used by Supplier or furnished to Chordiant by Supplier or Supplier Agents in providing the Services shall be free from material defects in design, workmanship, operation and performance, shall comply with items not provided or recommended by Supplier; (iv) Michaels’ use the applicable documentation and specifications, and shall provide the functions and features and operate in the manner described in the applicable Statement of the Services, Supplier Software, Supplier Equipment, Commissioned Materials, Work Product other than in a manner that is permitted by this Agreement;(v) infringement arising from Michaels Software or other material provided documentation agreed to by Michaels the Parties for access and use 180 days following the acceptance of Supplier in connection with the Service; provided, that the exclusions described in clauses (i)(B) and (ii) will not apply in the event that Supplier knew, or ought to have known, that such materials infringed upon the proprietary by Chordiant and shall be free and clear of any liens, claims, charges, debts or other rights of a third party)encumbrances;
(de) Supplier shall promptly notify Michaels Chordiant if Supplier learns of any claim, pending or threatened, or any fact upon which a claim could be made, that asserts that the Deliverables, Services, Supplier Software, Supplier Tools, Supplier Equipment, Commissioned Materials, Work Product and any other resources or items used by Supplier or furnished to Michaels Chordiant by Supplier or Supplier Agents in providing the ServicesAgents, or Michaels’ Chordiant’s receipt and use of the foregoing as contemplated under this Agreement may infringe upon the proprietary rights of any third party;
(ef) without limiting Supplier’s obligations under any applicable Statements of Work, Supplier shall take all commercially reasonable best efforts to prevent any ensure that no viruses, trojan horseslocks, worms, spywaretrap doors, back doors, email bombs, malicious code doors or similar items whose knowing or intended purpose is to damage or interfere with the operation of the computer system containing the code, program or sub program, or to interfere with the operation of the Systems (collectivelyor any portion thereof), “Malware”including any code, program, or sub-program, or any device, method, or token that permits any person to circumvent the normal security of the Systems (or any portion thereof) to be or the system containing the code are coded or introduced into the Systems by Supplier or Supplier AgentsSystems, and shall use all reasonable efforts to prevent Malware from being introduced into the System by any third parties; provided that Supplier agrees that, in the event that Malware a virus or similar item is found to have been introduced into the Systems, Supplier shall use all commercially reasonable best efforts to mitigate the effects of the Malware virus or similar item and, if the Malware virus or similar item causes a loss of operational efficiency or loss of data, to assist Chordiant to the same extent to mitigate and make all commercially reasonable best efforts to restore such lost datalosses;
(fg) Supplier shall take all commercially reasonable best efforts not insert into the Software used to prevent provide the Services any Software or Equipment code that would have the effect of disabling or otherwise shutting down all or any portion of the Services is coded Systems or introduced into the Systems. With respect to any disabling code that may be part of the Software, Supplier shall not invoke such disabling code at any time (whether during or after the Term) for any reason. If at any time the licensor of any Supplier Third Party Software shall invoke or threaten to invoke any disabling code in Supplier Third Party Software licensed to Supplier which could adversely affect the Services, Supplier shall use its best efforts to preclude such action on the part of such licensor;; and
(gh) neither Neither Supplier nor any Supplier Agents shall make any unauthorized representations on Michaels’ Chordiant’s behalf or about MichaelsChordiant, nor commit or bind Michaels Chordiant other than as specifically authorized;
(h) Supplier or Supplier Agents shall not, without the prior approval of Michaels (such approval to include where approved as part of an applicable Statement of Work or Project or where such Software is provided to Supplier by Michaels) include authorized in any Commissioned Materials or Michaels Derivative Works any software that is subject to any “copyleft” or other obligation or condition (including any obligation or condition under any “open source” license such as the GNU Public License, Lesser GNU Public License, or Mozilla Public License) that: (i) requires or conditions the use or distribution of such software on the disclosure, licensing, or distribution of any source code for any portion of such software; or (ii) could otherwise impose any limitation, restriction, or condition on the right or ability of Michaels to use or distribute such software;
(i) any Commissioned Materials and other deliverables provided by Supplier pursuant to this Agreement shall: (i) when delivered and for an agreed warranty period of three months be free from defects in materials, design, and workmanship;writing.
Appears in 1 contract
By Supplier. Supplier warrants to and covenants and agrees with Michaels WaMu that during the Term and the Termination Assistance Period:
(aA) Supplier shall provide the Services with promptness, diligence and in a professional manner, in accordance with the practices and professional standards used in well-managed operations performing services similar to the Services, and Supplier shall use adequate numbers of qualified individuals with suitable training, education, experience and skill to perform the Services;
(b) Supplier shall will comply with all Laws applicable to it and to its performance of the Services under this Agreement;
(B) the Supplier Software will comply with all Laws applicable to such Software;
(C) Supplier will promptly identify and notify WaMu of *** that relate to Supplier’s performance of the Services or WaMu’s use of the Services or the Supplier Software;
(D) if any change in Law prevents Supplier from performing its obligations under this Agreement, Supplier will develop and, upon *** implement a suitable workaround until such time as Supplier can perform its obligations under this Agreement without such workaround, provided, however, that if such workaround results *** in the performance *** to *** under this Agreement, then WaMu will have the right to terminate the applicable Services Agreement or the affected portion of this Agreement the services thereunder, in which case Section 20.4 (Termination by WaMu for Cause) (including the Default Cure Period) will not apply, and, upon the implementation of such workaround, the Parties will negotiate and shall obtain implement an equitable adjustment to the applicable Fees;
(E) Supplier will be responsible for any *** and *** arising from any noncompliance with any Law relating to the delivery or use of the Services except as set forth in subsection (B) of Section 19.1 (By WaMu);
(F) Supplier will obtain, maintain and comply with all applicable permits and licenses, including Supplier Governmental Approvals and the Supplier Consents, Supplier Government Approvals and permits and licenses required of Supplier in connection with its obligations hereunderunder this Agreement and will comply with the WaMu Consents as applicable to Supplier’s performance of the Services;
(cG) the Services, Supplier Software, Supplier Equipment, Commissioned Materials, Work Product and any other resources or items used by Supplier or furnished to Michaels by Supplier or Supplier Agents Software will operate in providing conformance with the Services shall not infringe upon specifications set forth in the proprietary rights of any third party Related Documentation;
(except to the extent such claim is based on: (iH) a modification to the Services, Supplier Software, Supplier Equipment, Commissioned Materials, Work Product: (A) by Michaels or Michaels Agents (other than Supplier); or (B) that was not made by or at the written direction of the Supplier; (ii) compliance by Supplier with written specifications provided by Michaels; (iii) Michaels’ combination none of the Services, the Work Product, the Supplier Software, the Supplier Equipment, Commissioned Materials, Work Product with items not provided Tools or recommended by Supplier; (iv) Michaels’ use of the Services, Supplier Software, Supplier Equipment, Commissioned Materials, Work Product other than in a manner that is permitted by this Agreement;(v) infringement arising from Michaels Software or other material provided by Michaels for access and use of Supplier in connection with the Service; provided, that the exclusions described in clauses (i)(B) and (ii) Machines will not apply in the event that Supplier knew, or ought to have known, that such materials infringed upon the proprietary or other rights of a third party);
(d) Supplier shall promptly notify Michaels if Supplier learns of any claim, pending or threatened, or any fact upon which a claim could be made, that asserts that the Services, Supplier Software, Supplier Equipment, Commissioned Materials, Work Product and any other resources or items used by Supplier or furnished to Michaels by Supplier or Supplier Agents in providing the Services, or Michaels’ receipt and use of the foregoing as contemplated under this Agreement may infringe upon or misappropriate the proprietary rights of any third party;
(eI) without limiting Supplier’s obligations under in addition to performing the Services in accordance with the Service Levels, all Deliverables delivered pursuant to this Agreement will conform in all material respects to the design specifications or other parameters contained in the relevant documents with respect to any applicable Statements such Work Product or other Deliverable and Supplier will correct any non-conformance of Workthe relevant Work Product or Deliverable (and redeliver such corrected Work Product or Deliverable) as soon as possible using dedicated, appropriate resources, which resources will not be charged to WaMu, and with no *** on the performance of other Services;
(J) Supplier shall take all commercially reasonable best efforts to prevent any viruses, trojan horses, worms, spyware, back doors, email bombs, malicious code will ensure that no viruses or similar items (collectively, “Malware”) to be are coded or introduced into the Supplier Systems by or the WaMu Systems. Supplier or Supplier Agentsagrees that, and shall use all reasonable efforts to prevent Malware from being introduced into the System by any third parties; provided that in the event that Malware a virus or similar item is found to have been introduced into the Supplier Systems or the WaMu Systems, Supplier shall use all commercially reasonable best efforts to mitigate will assist WaMu in reducing the effects of the Malware virus or similar item and, if the Malware virus or similar item causes a loss of operational efficiency or loss of datadata or creates a security risk, to assist WaMu to the same extent to mitigate and make all commercially reasonable best efforts to restore such lost datalosses and mitigate such risk;
(fK) without the consent of WaMu, Supplier will not insert into (1) WaMu Software, (2) Supplier shall take all commercially reasonable best efforts to prevent any Software or Equipment Supplier Tools which WaMu has the right to access or use or (3) the Software or Tools used to provide the Services any code that would have the effect of disabling or otherwise shutting down all or any portion of the Services is coded or introduced into the Systemsany such Software or Tools. With Supplier further represents and warrants that, with respect to any disabling code that may be part of (a) the SoftwareSupplier Software or Supplier Tools which WaMu has the right to access or use or (b) the Software or Tools used to provide the Services, Supplier shall will not invoke such disabling code at any time time, including upon expiration or termination of this Agreement, without WaMu’s consent;
(whether during or after the TermL) for any reason. If at any time the licensor of any Supplier Third Party Software shall invoke or threaten to invoke any disabling code in Supplier Third Party Software licensed to Supplier which could adversely affect will perform the Services, Supplier shall use its best efforts to preclude such action on and develop the part of such licensorDeliverables, in accordance with applicable professional standards in the business process outsourcing industry;
(gM) neither Supplier nor will ***, and in response to relevant changes in technology, changes in the sensitivity of WaMu’s Confidential Information, and internal and external threats to information security. Supplier will notify WaMu by email and facsimile to the WaMu representative and WaMu’s General Counsel, at the addresses set forth in Section 26.2 (Notices) within 24 hours after (1) any security breach of any part of the Services; or material unauthorized possession, use, or knowledge, or attempt thereof, of the WaMu Data, data-processing files, transmission messages or other Confidential Information by any person or entity that is or may become known; (2) the effect of such; and (3) the corrective action taken in response thereto; and
(N) as necessary from time to time and upon request by WaMu, Supplier will promptly take *** all necessary and appropriate actions to police compliance with and enforce its agreement with Project Staff, Supplier Agents shall make any unauthorized representations on Michaels’ behalf or about Michaels, nor commit or bind Michaels other than as specifically authorized;
(h) Supplier or Supplier Agents shall not, without the prior approval of Michaels (such approval to include where approved as part of an applicable Statement of Work or Project or where such Software is provided to Supplier by Michaels) include in any Commissioned Materials or Michaels Derivative Works any software that is subject to any “copyleft” or other obligation or condition (including any obligation or condition under any “open source” license such as the GNU Public License, Lesser GNU Public License, or Mozilla Public License) that: (i) requires or conditions the use or distribution of such software on the disclosure, licensing, or distribution of any source code for any portion of such software; or (ii) could otherwise impose any limitation, restriction, or condition on the right or ability of Michaels to use or distribute such software;
(i) any Commissioned Materials and other deliverables provided by Supplier pursuant third parties to the extent necessary to prevent or remedy breaches or potential breaches of Supplier’s obligations under this Agreement shall: (i) when delivered and for an agreed warranty period of three months be free from defects in materials, design, and workmanship;Agreement.
Appears in 1 contract
Sources: Master Outsourcing Services Agreement (PeopleSupport, Inc.)
By Supplier. Supplier covenants and agrees with Michaels Chordiant that during the Term and the Termination Assistance Period:
(a) Supplier shall provide the Services with promptness, diligence and in a professional manner, in accordance with the terms of the Lines of Business, Statements of Work and practices and professional standards used in well-managed operations performing services similar to the Services, and Supplier shall use adequate numbers of qualified individuals with suitable training, education, experience and skill to perform the Services;
(b) Supplier shall comply with all Laws applicable to Supplier in the performance of this Agreement and shall obtain all applicable Supplier Consents, Supplier Government Approvals and permits and licenses required of Supplier in connection with its obligations hereunder;
(c) the The Deliverables, Services, Supplier Software, Supplier Tools, Supplier Equipment, Commissioned Materials, Work Product and any other resources or items used by Supplier or furnished to Michaels Chordiant by Supplier or Supplier Agents in providing the Services shall not infringe upon the proprietary rights of any third party party; [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
(except to the extent such claim is based on: (id) a modification to the The Deliverables, Services, Supplier Software, Supplier Equipment, Commissioned Materials, Work Product: (A) by Michaels or Michaels Agents (other than Supplier); or (B) that was not made by or at the written direction of the Supplier; (ii) compliance by Supplier with written specifications provided by Michaels; (iii) Michaels’ combination of the Services, Supplier SoftwareTools, Supplier Equipment, Commissioned Materials, Work Product and any other resources or items used by Supplier or furnished to Chordiant by Supplier or Supplier Agents in providing the Services shall be free from material defects in design, workmanship, operation and performance, shall comply with items not provided or recommended by Supplier; (iv) Michaels’ use the applicable documentation and specifications, and shall provide the functions and features and operate in the manner described in the applicable Statement of the Services, Supplier Software, Supplier Equipment, Commissioned Materials, Work Product other than in a manner that is permitted by this Agreement;(v) infringement arising from Michaels Software or other material provided documentation agreed to by Michaels the Parties for access and use 180 days following the acceptance of Supplier in connection with the Service; provided, that the exclusions described in clauses (i)(B) and (ii) will not apply in the event that Supplier knew, or ought to have known, that such materials infringed upon the proprietary by Chordiant and shall be free and clear of any liens, claims, charges, debts or other rights of a third party)encumbrances;
(de) Supplier shall promptly notify Michaels Chordiant if Supplier learns of any claim, pending or threatened, or any fact upon which a claim could be made, that asserts that the Deliverables, Services, Supplier Software, Supplier Tools, Supplier Equipment, Commissioned Materials, Work Product and any other resources or items used by Supplier or furnished to Michaels Chordiant by Supplier or Supplier Agents in providing the ServicesAgents, or Michaels’ Chordiant’s receipt and use of the foregoing as contemplated under this Agreement may infringe upon the proprietary rights of any third party;
(ef) without limiting Supplier’s obligations under any applicable Statements of Work, Supplier shall take all commercially reasonable best efforts to prevent any ensure that no viruses, trojan horseslocks, worms, spywaretrap doors, back doors, email bombs, malicious code doors or similar items whose knowing or intended purpose is to damage or interfere with the operation of the computer system containing the code, program or sub program, or to interfere with the operation of the Systems (collectivelyor any portion thereof), “Malware”including any code, program, or sub-program, or any device, method, or token that permits any person to circumvent the normal security of the Systems (or any portion thereof) to be or the system containing the code are coded or introduced into the Systems by Supplier or Supplier AgentsSystems, and shall use all reasonable efforts to prevent Malware from being introduced into the System by any third parties; provided that Supplier agrees that, in the event that Malware a virus or similar item is found to have been introduced into the Systems, Supplier shall use all commercially reasonable best efforts to mitigate the effects of the Malware virus or similar item and, if the Malware virus or similar item causes a loss of operational efficiency or loss of data, to assist Chordiant to the same extent to mitigate and make all commercially reasonable best efforts to restore such lost datalosses;
(fg) Supplier shall take all commercially reasonable best efforts not insert into the Software used to prevent provide the Services any Software or Equipment code that would have the effect of disabling or otherwise shutting down all or any portion of the Services is coded Systems or introduced into the Systems. With respect to any disabling code that may be part of the Software, Supplier shall not invoke such disabling code at any time (whether during or after the Term) for any reason. If at any time the licensor of any Supplier Third Party Software shall invoke or threaten to invoke any disabling code in Supplier Third Party Software licensed to Supplier which could adversely affect the Services, Supplier shall use its best efforts to preclude such action on the part of such licensor;; and
(gh) neither Neither Supplier nor any Supplier Agents shall make any unauthorized representations on Michaels’ Chordiant’s behalf or about MichaelsChordiant, nor commit or bind Michaels Chordiant other than as specifically authorized;
(h) Supplier or Supplier Agents shall not, without the prior approval of Michaels (such approval to include where approved as part of an applicable Statement of Work or Project or where such Software is provided to Supplier by Michaels) include authorized in any Commissioned Materials or Michaels Derivative Works any software that is subject to any “copyleft” or other obligation or condition (including any obligation or condition under any “open source” license such as the GNU Public License, Lesser GNU Public License, or Mozilla Public License) that: (i) requires or conditions the use or distribution of such software on the disclosure, licensing, or distribution of any source code for any portion of such software; or (ii) could otherwise impose any limitation, restriction, or condition on the right or ability of Michaels to use or distribute such software;
(i) any Commissioned Materials and other deliverables provided by Supplier pursuant to this Agreement shall: (i) when delivered and for an agreed warranty period of three months be free from defects in materials, design, and workmanship;writing.
Appears in 1 contract
By Supplier. Supplier represents, warrants and covenants to Advanta that: ****** — Denotes material that has been omitted and agrees filed separately with Michaels the Commission.
a. there are no pending or threatened claims against Supplier that during the Term could have a Material Adverse Effect and the Termination Assistance Period:Supplier is not aware of any circumstance that could give rise to such a claim;
(ai) Supplier shall provide the Services shall be rendered with promptness, diligence efficiency, and diligence, and shall be executed in a professional workmanlike and cost-effective manner, in accordance with the high professional practices and professional standards used in well-managed operations suppliers performing services substantially similar to the Services, and Supplier ; (ii) it shall use an adequate numbers number of qualified individuals with suitable training, education, experience experience, and skill to perform the Services;
; (biii) it shall maintain quality certifications for any Supplier Facilities at or from which Services are performed or provided, as required from time to time by Advanta, and (iv) the Services shall strictly comply with all applicable Laws applicable to Supplier in and the performance terms of this Agreement to ensure protection of Customer Data and Advanta Confidential Information.
c. it shall obtain all applicable Supplier Consentsmaintain the Software and the Equipment so that they operate in accordance with their respective specifications, Supplier Government Approvals and permits and licenses required of Supplier in connection with its obligations hereunder;
(c) the Servicesincluding by means of, Supplier Software, Supplier Equipment, Commissioned Materials, Work Product and any other resources or items used by Supplier or furnished to Michaels by Supplier or Supplier Agents in providing the Services shall not infringe upon the proprietary rights of any third party (except subject to the extent such claim is based onterms and conditions of this Agreement: (i) a modification to maintaining the Services, Supplier Software, Supplier Equipment, Commissioned Materials, Work Product: (A) by Michaels or Michaels Agents (other than Supplier); or (B) that was not made by or at Software and the written direction of the SupplierEquipment in good operating condition; (ii) compliance by Supplier promptly undertaking repairs and preventive maintenance on the Equipment, including, at a minimum, in accordance with written specifications provided by Michaelsapplicable manufacturer’s recommendations; (iii) Michaels’ combination of promptly installing available Bug Fixes and Upgrades to the Services, Supplier Software, Supplier Equipment, Commissioned Materials, Work Product with items not provided or recommended by Suppliersubject to the terms and conditions of this Agreement; and (iv) Michaels’ performing all Software maintenance necessary to ensure that the Software is up-to-date and functioning in accordance with its specifications.
d. it shall use any resources and services necessary to provide the Services efficiently, and that it shall perform the Services in the most cost-effective manner consistent with the level of quality and performance required hereunder.
(i) it shall provide the ServicesServices using proven, Supplier Softwarecurrent technology that shall both enable Advanta to take advantage of technological advances in its industry, Supplier Equipmentand support Advanta’s efforts to maintain competitiveness in the markets in which it competes; (ii) in consultation with Advanta, Commissioned Materialsit shall implement all available upgrades in technology, Work Product other than allowing the Parties to realize the benefits of any applicable increases in efficiency and productivity; (iii) it shall proactively seek out new technologies by surveying key suppliers, in order to identify advances or changes in technology that are or could be appropriate and beneficial to Advanta, and shall contribute to the ongoing development of Advanta’s strategies, principles, and standards (including with respect to technical, data, and applications architectures) at Advanta’s request; and (iv) it shall use diligence and practices in accordance with Payment Card Industry Standards to identify and protect against emerging security risks and threats.
f. it shall perform its obligations hereunder in a manner that is permitted by this Agreement;(v) infringement arising from Michaels does not, and that the Supplier-Provided Software and any Deliverables or other material provided materials prepared by Michaels for access and use or on behalf of Supplier in connection with the Service; providedcourse of performing the Services do not, that the exclusions described in clauses (i)(B) and (ii) will not apply in the event that Supplier knewshall not, infringe upon or violate, or ought to have knownconstitute a misappropriation of, that such materials infringed upon the proprietary any patent, copyright, trademark, trade secret, license, or other intellectual property rights of a third party);
(d) Supplier shall promptly notify Michaels if Supplier learns of any claim, pending or threatened, or any fact upon which a claim could be made, that asserts that the Services, Supplier Software, Supplier Equipment, Commissioned Materials, Work Product and any other resources or items used by Supplier or furnished to Michaels by Supplier or Supplier Agents in providing the Services, or Michaels’ receipt and use of the foregoing as contemplated under this Agreement may infringe upon the proprietary rights of any third party;. ****** — Denotes material that has been omitted and filed separately with the Commission.
g. it shall and shall cause the Supplier Agents to comply with all third party agreements applicable to the provision of the Services, including, all of the terms and conditions for use of Advanta-Provided Software.
(ei) without limiting each Supplier Subcontractor has entered into a Subcontractor Direct Agreement with Advanta dated as of the Effective Date, (ii) it has, and the Supplier Subcontractors have, entered into an EIPI Agreement with each of their respective employees providing the Services and (iii) it shall, and shall cause the Supplier Subcontractors to, enter into an EIPI Agreement with each new employee providing the Services.
i. all Deliverables and other materials prepared by or on behalf of Supplier in the course of performing the Services do and shall: (i) conform to their respective specifications; (ii) contain no material bugs or defects; and (iii) work for their intended purposes.
j. it is either the owner of, or expressly authorized to use for purposes of providing the Services, all Supplier’s obligations under -Provided Software and any applicable Statements of Workother software that is provided or used, or shall be provided or used, by Supplier or any Supplier Agents in connection with this Agreement.
(i) it shall take all commercially reasonable use best efforts to prevent any viruses, trojan horses, worms, spyware, back doors, email bombs, malicious code or similar items (collectively, “Malware”) to be ensure that no Viruses are coded or introduced into any Software or Equipment used to provide the Systems Services, into Advanta’s software or systems, or into any Deliverables or other materials prepared by or on behalf of Supplier or Supplier Agents, and shall use all reasonable efforts to prevent Malware from being introduced into the System by any third parties; provided that in the event that Malware course of performing the Services; (ii) if any Virus is found discovered in any Software or Equipment used to have been introduced into provide the SystemsServices or any Deliverables or other materials prepared by or on behalf of Supplier in the course of performing the Services, Supplier shall use all commercially reasonable best efforts to mitigate immediately assist Advanta in mitigating the adverse the effects of the Malware Virus and, if the Malware Virus causes a loss of operational efficiency or loss of data, mitigate in mitigating such losses and make all commercially reasonable best efforts restoring Advanta to restore its pre-loss position; and (iii) if any Virus is discovered in Advanta’s systems and such lost data;
(f) Virus was introduced in violation of this Section 25.1(k), Supplier shall take indemnify Advanta for all commercially reasonable best efforts Losses incurred as a result of such violation.
l. without the prior written consent of Advanta, no Open Source Software: (i) has been or shall be coded or otherwise introduced into, or shall be made part of, incorporated into, combined with, used to prevent create, or distributed in conjunction with, any Software or Equipment used to provide the Services, into Advanta’s software or systems, or into any Deliverables or other materials prepared, maintained, or delivered by or on behalf of Supplier in the course of performing the Services; (ii) shall be used in any manner that would have the effect of disabling creates, or otherwise shutting down all or any portion of the Services is coded or introduced into the Systems. With purports to create, obligations for Advanta with respect to any disabling code Software or Equipment used to provide the Services, any Advanta software or systems, or any Deliverables or other materials prepared, maintained or delivered, by or on behalf of Supplier in the course of performing the Services, or grants or purports to grant to any third party any rights or immunities under any such Software, Equipment, Deliverables or materials (including any use, modification and/or distribution of Open Source Software that requires, as a condition of such use, modification, and/or distribution, that other software integrated with, derived from, or distributed with such Open Source Software be (A) disclosed or distributed in Source Code form or (B) redistributed at no charge). ****** — Denotes material that has been omitted and filed separately with the Commission.
(i) Supplier shall use best efforts to not introduce any Disabling Code into any Software or Equipment used to provide the Services, into Advanta’s software or systems, or into any Deliverables or other materials prepared by or on behalf of Supplier in the course of performing the Services; (ii) with respect to any Disabling Code that may be part of the SoftwareSoftware used to provide the Services, Supplier shall not invoke invoke, cause to be invoked, or permit the invocation of such disabling code Disabling Code at any time without Advanta’s prior written consent; and (iii) if any Disabling Code has been found introduced in violation of this Section 25.1(m), Supplier shall indemnify Advanta for all Losses incurred as a result of such violation.
n. with respect to all date-related data and functions, the Software or Equipment used to provide the Services and any Deliverables or other materials prepared by or on behalf of Supplier in the course of performing the Services shall accept input, perform processes, and provide output in a manner that: (i) is consistent with its intended use and all applicable specifications; (ii) prevents ambiguous or erroneous results, including date-related errors; and (iii) does not result in any adverse effect on the Services.
o. all costs to be charged to Advanta in connection with the performance of the Services are expressly identified in this Agreement or SOWs, and that Supplier is unaware of any other costs (whether during direct charges, Pass-Through Expenses, or after otherwise) that Advanta shall incur in connection with Supplier’s performance of the Term) for Services.
p. [intentionally deleted] q. it has not violated any reasonLaws or Card Association Rules, or any Advanta policies of which Supplier has been given notice, regarding the offering of unlawful inducements in connection with this Agreement. If at any time during the licensor of Term, Advanta determines that the foregoing warranty is inaccurate, then, in addition to any Supplier Third Party Software other rights Advanta may have at law or in equity, Advanta shall invoke or threaten have the right to invoke any disabling code in Supplier Third Party Software licensed immediately terminate this Agreement for cause upon notice to Supplier which could adversely affect the Services, Supplier shall use its best efforts to preclude such action on the part of such licensor;
(g) neither Supplier nor any Supplier Agents shall make any unauthorized representations on Michaels’ behalf or about Michaels, nor commit or bind Michaels other than as specifically authorized;
(h) Supplier or Supplier Agents shall notSupplier, without the prior approval of Michaels (such approval penalty and without affording Supplier an opportunity to include where approved as part of an applicable Statement of Work or Project or where such Software is provided to Supplier by Michaels) include in any Commissioned Materials or Michaels Derivative Works any software that is subject to any “copyleft” or other obligation or condition (including any obligation or condition under any “open source” license such as the GNU Public License, Lesser GNU Public License, or Mozilla Public License) that: (i) requires or conditions the use or distribution of such software on the disclosure, licensing, or distribution of any source code for any portion of such software; or (ii) could otherwise impose any limitation, restriction, or condition on the right or ability of Michaels to use or distribute such software;
(i) any Commissioned Materials and other deliverables provided by Supplier pursuant to this Agreement shall: (i) when delivered and for an agreed warranty period of three months be free from defects in materials, design, and workmanship;cure.
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