Warranty and Limitation of Liabilities
TGS warrants that the services will be provided in a professional and workmanlike manner and TGS makes no other express warranties and disclaims all implied warranties including, but not limited to, the warranties of merchantability and fitness for a particular purpose. Customer acknowledges that the services provided by TGS are advisory only and no specific result is assured or guaranteed. In no event shall either party be liable for any indirect, incidental, special or consequential damages nor shall either party’s liability exceed the value of this SOW. Notwithstanding the foregoing, there are no limitations on liability for claims arising out of a breach of the confidentiality, nonsolicitation, or indemnification obligations of this SOW or claims arising from the gross negligence or willful misconduct of a party.
TGS Consultants
TGS shall:
(a) recruit, screen, interview, and assign its employees and contractors (the "Consultants") to perform the work for Customer;
(b) pay Consultants wages and provide other benefits as TGS deems appropriate;
(c). pay, withhold, and transmit payroll taxes, provide unemployment insurance and workers' compensation in an amount no less than required by law, and handle workers' compensation and unemployment claims involving Consultants, if applicable;
(d) ensure Consultants are legally authorized to work in the United States;
(e) require Consultants to acknowledge in writing that they are employees or contractors, as applicable, of TGS alone and that they are not employees of the Customer;
(f) require Consultants to sign an agreement acknowledging that they are not entitled to holidays, vacations, disability, insurance, pensions or retirement plans, or any other benefits offered or provided by Customer to its employees; and
(g) have sole responsibility for providing and will provide necessary health coverage to Consultants under the Affordable Care Act's (ACA) employer mandate and its implementing regulations, if applicable. TGS represents and warrants that it will comply with all laws, including the ACA, in doing so.
TGS represents that:
(a) it is solely responsible for all required training of Consultants under federal, state, and local laws, including those regarding anti-harassment, anti-retaliation, anti-discrimination, workplace safety training, and any other applicable laws;
(b) it is solely responsible for all pre-employment screening and testing of Consultants, as may be required or allowed by law, including Form I-9 verification, criminal background checks, industry-specific checks, and related recordkeeping; and
(c) it is solely responsible for performance managing, disciplining, and terminating its Consultants.
If Customer in its sole discretion finds any Consultant's qualifications or general work-related behavior lacking, it shall advise TGS promptly upon discovering the insufficiency. TGS will not charge Customer for the first period of the assignment and will replace the Consultant as soon as practicable.
Nothing in the SOW or otherwise is intended to assign rights to or limit TGS’s use of, its know-how or knowledge that TGS had prior to providing the services or that TGS obtains during its performance under this SOW to the extent it does not include Customer’s confidential information.
Intellectual Property
TGS is in the business of providing information technology consulting services drawing upon the knowledge, understanding and expertise TGS employees have gained in the course of working with many individual clients, both similar and different from Customer. Nothing in the SOW or otherwise is intended to assign rights to or limit TGS’s use of, its general know-how, knowledge, skills and experience, concepts or techniques that TGS and its employees had prior to providing the services or that TGS or any of its employees obtains during its performance under this SOW to the extent it does not include Customer’s confidential information.
Notwithstanding the foregoing, Customer is, and shall be, the sole and exclusive owner of all right, title, and interest in and to the work product created by Consultants on Customer's behalf, including all intellectual property rights therein. TGS agrees, and will cause its Consultants to agree, that with respect to any work product that may qualify as "work made for hire" as defined in 17 U.S.C. § 101, such work product is hereby deemed a "work made for hire" for Customer. To the extent that any of the work product does not constitute a "work made for hire," TGS hereby irrevocably assigns, and shall cause the Consultants to irrevocably assign to Customer, in each case without additional consideration, all right, title, and interest throughout the world in and to the work product, including all intellectual property rights therein.
Confidentiality
Either party may be given access to or acquire information which is proprietary or confidential to the other party and its affiliated companies, clients, or customers. Any and all such information obtained by such receiving party or the Consultants shall be deemed to be confidential and proprietary information. Each party agrees to hold such information in strict confidence and not to disclose such information to third parties or to use such information for any purposes whatsoever other than the providing (or, if applicable, receiving) of services under this SOW. TGS agrees to require Consultants to keep such information of Customer confidential and to enter into confidentiality agreements before being assigned to Customer.
Nonsoliciation
During the term of this SOW and for 12 months thereafter, neither party will solicit for employment any employee or contractor of the other who was engaged in the services performed under this SOW. This limitation shall not apply to the hiring of employees through good-faith general solicitations for employment.
Indemnification
TGS shall defend, indemnify, and hold harmless Customer and its officers, directors, employees, agents, successors, and permitted assigns from and against all claims, losses, and liabilities, including reasonable attorneys' fees, arising out of or resulting from: (a) bodily injury, death of any person, or damage to real or tangible personal property resulting from the willful, fraudulent, or negligent acts or omissions of TGS or Consultants; or (b) TGS's breach of any representation, warranty, or obligation of TGS set forth in this SOW.
Customer shall defend, indemnify, and hold harmless TGS and its officers, directors, employees, agents, successors, and permitted assigns from and against all claims, losses, and liabilities, including reasonable attorneys' fees, arising out of or resulting from: (a) bodily injury, death of any person, or damage to real or tangible personal property resulting from the willful, fraudulent, or negligent acts or omissions of Customer; or (b) Customer's breach of any representation, warranty, or obligation of Customer set forth in this SOW.
Neither party will be responsible for indemnifying the other party to the extent the basis of the indemnity claim arises out of such other party’s own negligence or willful misconduct.
In order to avail itself of the foregoing indemnity provisions, indemnitee shall promptly provide written notice to indemnitor of any such claim (provided that failure to give or delay in giving such notice to the Indemnitor shall not relieve the Indemnitor of any liability it may have hereunder except to the extent that the indemnitor demonstrates that the defense of such action is prejudiced thereby), tender the defense of the claim to indemnitor (provided that no settlement of any claim may be effected by the indemnitor that involves an admission of fault by or requires an obligation of performance or the payment of money by the indemnitee, other than the payment or performance obligations to which the indemnitee is bound under this SOW without the indemnitee's written consent), and reasonably cooperate with indemnitor, at the indemnitor’s expense, in the defense of the claim. Indemnitor shall not be liable for any cost, expense, or compromise incurred or made by indemnitee in any legal action without the indemnitor’s prior written consent.
Insurance
TGS shall procure and maintain in force Worker's Compensation Insurance, Employer's Liability Insurance, Commercial General Liability Insurance on an occurrence basis with contractual coverage and Automobile Liability Insurance, including owned, non-owned and hired automobile coverage and such other insurance, to the extent required by Customer. Customer shall be named as an additional insured.
Certificates of Insurance that are reasonably satisfactory in form to the Customer shall be supplied by TGS upon request evidencing that the following limits are in force and that not less than thirty (30) calendar days' written notice will be given to the Customer prior to any cancellation or restrictive modification of the policies:
(a) Workers' Compensation in accordance with the provisions of the applicable Workers' Compensation Law having jurisdiction over the employee and Employer’s Liability insurance, with a limit of not less than $500,000 for each of (i) bodily injury each accident, (ii) each employee and (iii) aggregate policy limit;
(b) Comprehensive General Liability with a limit of not less than $1,000,000 per occurrence, combined single limit for bodily injury and property damage; $1,000,000 for personal and advertising injury; $2,000,000 general aggregate (per project); and $2,000,000 products/completed operations aggregate; and
(c) Automobile Liability with a limit of not less than $1,000,000 combined single limit for bodily injury and property damage per accident.
Said insurance policies shall be endorsed to provide contractual liability to the extent of liability assumed by TGS under this SOW.