NO. 05-11-00999-CV - 5th Court of Appeals

Transcription

NO. 05-11-00999-CV
ACCEPTED
225EFJ016493098
FIFTH COURT OF APPEALS
DALLAS, TEXAS
11 September 13 A11:26
Lisa Matz
CLERK
_____________________________________________________
IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT
OF TEXAS AT DALLAS
_____________________________________________________
NET4SITE, LLC, CHANDRA SINGLA
AND NAGASUNDARAM PADMANABHAN,
Appellants
vs.
SYSTECH INTEGRATORS, INC.,
f/k/a ACS SYSTECH INTEGRATORS, INC.,
Appellee.
_____________________________________________________
Interlocutory Appeal from the 134th Judicial District Court
of Dallas County, Texas, Trial Court Cause No. 11-07945
_____________________________________________________
AMENDED BRIEF OF APPELLANTS
_____________________________________________________
Harmeet K. Dhillon
California Bar No. 207873*
[email protected]
DHILLON & SMITH LLP
177 Post Street – Suite 700
San Francisco, CA 94108
Phone: 415.433.1700
Fax: 415.520.6594
*Admitted Pro Hac Vice
James David Brown
Texas Bar No. 03136600
[email protected]
WINSTEAD PC
1201 Elm Street
Dallas, TX 75270
Phone: 214.745.5234
Fax: 214.745.5390
David F. Johnson
Texas Bar No. 24002357
[email protected]
WINSTEAD PC
777 Main Street – Suite 1100
Fort Worth, TX 76102
Phone: 817.420.8200
Fax: 817.420.8201
ATTORNEYS FOR APPELLANTS NET4SITE, LLC, CHANDRA SINGLA
AND NAGASUNDARAM PADMANABHAN
ORAL ARGUMENT REQUESTED
REQUEST FOR ORAL ARGUMENT
Pursuant to Rule 39.7 of the Texas Rules of Appellate Procedure, Appellants,
Net4site, LLC, Chandra Singla, and Nagasundaram Padmanabhan, respectfully request
oral argument in this cause. They respectfully submit that oral argument will materially
aid the court in resolving the issues presented in this appeal.
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), Appellants certify that
the following are the correct parties and counsel :
APPELLANTS NET4SITE, LLC, CHANDRA SINGLA
AND NAGASUNDARAM PADMANABHAN
Counsel for Appellants at Trial and on Appeal:
Harmeet K. Dhillon
CA State Bar No. 207873*
214 Grant Ave. – Suite 400
p: 415.433.1700
f: 415.520.6593
James David Brown
TX State Bar No. 03136600
Winstead PC
5400 Renaissance Tower
1201 Elm Street
Dallas, TX 75270
p: 214.745.5234
f: 214.745.5390
David F. Johnson
Winstead PC
p: 817.420.8200
f: 817.420.8201
APPELLEE SYSTECH INTEGRATORS, INC.,
f/k/a ACS SYSTECH INTEGRATORS, INC.,
Counsel for Appellee at Trial and on Appeal
Rodolfo Rodriguez, Jr.
Demarron A. Berkley
Gruber Hurst Johansen Hail Shank LLP
Fountain Place
1445 Ross Avenue – Suite 2500
Dallas, TX 75202
Phone: 214.855-6800
Fax: 214.855-6808
TABLE OF CONTENTS
Table of Contents..................................................................................................................i
Index Of Authorities ............................................................................................................ii
I.
Statement Of The Case ............................................................................................. 1
II.
Issues Presented ........................................................................................................ 2
III.
Introduction............................................................................................................... 3
IV.
Statement Of Facts.................................................................................................... 4
V.
Summary Of The Argument ..................................................................................... 7
VI.
Arguments And Authorities...................................................................................... 8
A. Standard Of Review Over Temporary Injunction Order .................................. 11
B. Systech Provided No Evidence Of A Probable Right Of Recovery ................. 12
1. The Temporary Injunction Order Was Unsupported By
Texas Law.......................................................................................... 12
2. There Was No Threat To The Trial Court’s Jurisdiction .................. 14
3. The Net4site Parties Have Not Sought To Evade Important
Texas Public Policy ........................................................................... 16
4. This Dispute Does Not Involve A Multiplicity Of Suits ................... 18
5. The Net4site Parties Have Not Engaged In Vexatious
Or Harassing Litigation ..................................................................... 19
C. The Net4site Parties’ First-Filed Suit Deserves Priority................................... 22
D. Systech Offered No Evidence Of An Imminent, Irreparable Injury In The
Interim ............................................................................................................... 23
VII.
Conclusion And Prayer........................................................................................... 26
Appendix............................................................................................................................ 30
i
INDEX OF AUTHORITIES
Cases
Advanced Bionics Corp. v. Medtronic, Inc., 29 Cal. 4th 697, 705, 59 P.3d
231, 236 (2002)................................................................................................................ 22
Alert Synteks, Inc. v. Jerry Spencer, L.P., 151 S.W.3d 246 (Tex. App.
—Tyler 2004, no pet.)...................................................................................................... 25
Am. Intern. Specialty Lines Ins. Co. v. Triton Energy Ltd., 52 S.W.3d 337,
340 (Tex. App.—Dallas 2001, pet. dism’d w.o.j.) ........................................ 15, 16, 17, 20
Atkinson v. Arnold, 893 S.W.2d 294, 297-298 (Tex. App.—Texarkana
1995, no writ)............................................................................................................. 25, 26
AutoNation, Inc. v. Hatfield, 186 S.W.3d 576 (Tex. App.—Houston
[14th Dist.] 2005, no pet.)................................................................................................ 13
AVCO Corp. v. Interstate Sw., Ltd., 145 S.W.3d 257, 266 (Tex. App.
—Houston [14th Dist.] 2004, no pet.) ............................................................................. 19
Berg v. MTC Electronics Technologies, 61 Cal. App. 4th 349, 354, 71
Cal. Rptr. 2d 523, 526 (Cal. Ct. App. 1998).................................................................... 25
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).......................................... 11
Christensen v. Integrity Ins. Co., 719 S.W.2d 161 (Tex.1986) ............................. 11, 13, 18
Gannon v. Payne, 706 S.W.2d 304, 307 (Tex.1986)..................................................passim
Golden Rule Insurance Co. v. Harper, 925 S.W.2d 649, 651 (Tex.1996) .................passim
Gonzales v. Reliant Energy, 159 S.W.3d 615 (Tex. 2005)................................................ 15
Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997) ...................................................... 11
IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191 (Tex. App.
—Fort Worth 2005, no pet.) ...................................................................................... 23, 24
In re AutoNation, Inc., 228 S.W.3d 663 (Tex.2007) ..................................................passim
ii
Fasken v. Darby, 901 S.W.2d 591, 593 (Tex. App.—El Paso 1995, no writ) .................. 24
Hancock v. Bradshaw, 350 S.W.2d 955, 957 (Tex. Civ. App.—Amarillo
1961, no writ)............................................................................................................. 24, 25
Mejerle v. Brookhollow Office Prod. Inc., 666 S.W.2d 192, 193 (Tex.
App.—Dallas 1983, no writ) ........................................................................................... 24
Metra United Escalante, L.P. v. Lynd Co., 158 S.W.3d 535, 541 (Tex.
App.—San Antonio 2004, no pet.) .................................................................................. 24
Miller-Leigh LLC v. Henson, 152 Cal. App. 4th 1143, 1146, 62 Cal.
Rptr. 3d 83, 84 (Cal. Ct. App. 2007) ............................................................................... 25
Mother & Unborn Baby Care v. Doe, 689 S.W.2d 336 (Tex. App.
—Fort Worth 1985, writ dism'd w.o.j.) ........................................................................... 24
Nedlloyd Lines B.V. v. Superior Court, 3 Cal. 4th 459, 462, 834 P.2d
1148, 1149 (1992)............................................................................................................ 17
Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex. 2001) ........................................................... 23
Sherman v. Triton Energy Corp., 124 S.W.3d 272, 275 (Tex. App.
—Dallas 2003, pet. denied) ............................................................................................. 17
Sonic-Calabasas A, Inc. v. Moreno, 51 Cal. 4th 659, 697, 247 P.3d 130,
153 (2011)........................................................................................................................ 16
Walling v. Metcalfe, 863 S.W.2d 56 (Tex. 1993) .............................................................. 24
Washington Mut. Bank, FA v. Superior Court, 24 Cal. 4th 906, 917, 15
P.3d 1071, 1078 (2001).................................................................................................... 16
Wolf v. Summers-Wood, L.P., 214 S.W.3d 783, 792 (Tex. App.—Dallas
2007, no pet.) ................................................................................................................... 18
Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.1988) ...................................... 23
Statutes
CAL. BUS. & PROF. CODE § 16600 (West) .......................................................................... 6
CAL. CIV. PROC. CODE § 1292.4 (West).............................................................................. 6
iii
I. STATEMENT OF THE CASE
Nature of the
Case
This is an interlocutory appeal from the Order Granting Temporary
Injunction precluding Appellants Net4site LLC, Chandra Singla, and
Nagasundaram Padmanabhan (collectively, the “Net4site Parties”) from
conducting any activities in an earlier filed case in California styled
Net4site LLC, et al. v. Systech Integrators Inc., Superior Court of the
State of California – County of Santa Clara, Case No. 1-11-CV-202800,
filed June 10, 2011 (the “California Action”). In the California Action,
Appellants, a limited liability company headquartered in California and
two of its employees, sought a judicial declaration that the contract
entered into between the company and Appellee Systech Integrators Inc.
(“Systech”), a California corporation headquartered in California, was an
illegal restraint of trade and consequently unenforceable under California
law.
Course of
Proceedings And
Trial Court's
Disposition
Appellee Systech initiated this case (the “Texas Action”) by filing a
petition in the 134th Judicial District Court of Dallas County, Texas,
Cause No. 11-07945, the honorable Dale Tillery presiding (C.R. at 6).
Systech filed this suit on June 28, 2011, more than two weeks after the
Net4site Parties initiated the California Action, nearly a week after
Systech initiated arbitration with the American Arbitration Association
on June 22, 2011 (the “Arbitration”), and a day before Systech filed a
Petition to Compel Arbitration in the California Action on June 29, 2011
(C.R. at 124, 202, and 315). On June 29, 2011, the trial court, without
knowledge of Systech’s pending Petition to Compel Arbitration in the
California Action, issued a Temporary Restraining Order prohibiting the
Net4site Parties from prosecuting the California Action in any manner
whatsoever (C.R. at 245). On July 14, 2011 the trial court issued the
temporary injunction order. The Net4site Parties timely filed their notice
of appeal on July 29, 2011 (C.R. at 262). This appeal followed.
1
II. ISSUE PRESENTED
A trial court abuses its discretion in granting a temporary injunction where there is
no showing of a probable right to recovery and no adequate remedy at law. Here, the
Appellee made no showing of a probable right of recovery because the Texas trial court
should not have granted an anti-suit injunction against a party prosecuting a first-filed
suit in a sister state. Further, the Appellee made no showing of an irreparable injury or
no adequate remedy at law. The trial court abused its discretion in issuing the temporary
injunction in this case.
2
III. INTRODUCTION
In issuing an anti-suit injunction against a first-filed action in the state of
California, the trial court has ignored and endangered the fundamental jurisprudential
principle of sister state comity and judicial restraint long-held by the Texas Supreme
Court, the United States Supreme Court and every state in this nation since the country
was founded.
The trial court has done so in flagrant disregard of Texas anti-suit
injunction jurisprudence, including the seminal Gannon and Golden Rule decisions. 706
S.W.2d 304, 307 (Tex.1986); 925 S.W.2d 649, 651 (Tex.1996). Indeed, none of the four
bases identified by Golden Rule that could theoretically provide support for an anti-suit
injunction have been satisfied in this case: the Net4site Parties have not threatened the
Texas court’s jurisdiction as the California Action was the first filed suit; the Net4site
Parties have not sought to evade Texas public policy as California has the same strong
preference for arbitration and enforcement of choice of law and forum selection contract
provisions; the Net4site Parties have not initiated a multiplicity of suits and have just
filed one suit – the first-filed California Action in Systech’s home county; and the
Net4site Parties have not engaged in vexatious or harassing litigation.
“The principle of comity requires that courts exercise the power to enjoin foreign
suits ‘sparingly, and only in very special circumstances.’” Golden Rule, 925 S.W.2d at
651. This dispute does not present the “special circumstances” in which a anti-suit
injunction against first-filed action in a sister state can be upheld. A such, Systech has not
made a showing that it has a probable right of recovery. For this reason, detailed more
thoroughly below, this Court must reverse the trial court’s temporary injunction order.
3
IV. STATEMENT OF FACTS
Net4site LLC (“Net4site”) is a Delaware corporation with its principal place of
business in California (C.R. at 9). Net4site provides enterprise software application
implementation and systems integration services with a focus in process reengineering,
implementation of enterprise resource planning, and integration of disparate systems
across an enterprise (C.R. at 130; 2 R.R. at 12). Chandra Singla (“Singla”), Net4site’s
President and Chief Executive Officer, is a resident of San Jose, California (C.R. at 9).
Nagsundaram Padmanabhan (“Padmanabhan”), Net4site’s Vice-President of Delivery is
a resident of Naperville, Illinois (C.R. at 9).
Systech Integrators Inc. (“Systech”) is a California corporation with its principal
place of business in California (C.R. at 9). Systech is an information technology solutions
and services company (2 R.R. at 9). In October, 2006, Systech was acquired by Texasbased Affiliated Computer Services, Inc., which renamed Systech as ACS Systech
Integrators, Inc. (C.R. at 14-15; 2 R.R. at 8). SRT Acquisition Corp., a California
corporation with its principal place of business in California, acquired a 100% interest in
ACS Systech Integrators, Inc. in May, 2010, and subsequently changed ACS Systech
Integrators, Inc.’s name back to Systech Integrators, Inc. (Systech Integrators Inc. and
ACS Systech Integrators Inc. are both hereinafter referred to as “Systech”) (C.R. at 132133; 2 R.R. at 8). Despite changes in its ownership, Systech has remained a Californiabased corporation since its inception and throughout this dispute (C.R. at 14-15; 2 R.R. at
28). Systech purports to have a single office in Texas, located in the city of Irving, but
4
admits that there are no employees at that office (2. R.R. at 32). In its verified1 Original
Petition and Verified Application for Temporary Restraining Order and Temporary and
Permanent Injunction (the “Original Petition”) Systech’s Texas office was stated as being
located in Dallas, Texas, with no mention of Irving (C.R. at 9).
On October 30, 2008, Net4site entered into a Staffing Services Agreement (the
“Agreement”) with Systech (C.R. at 13). Pursuant to the Agreement, Net4site provided
services to Systech’s clients in various projects (C.R. at 13). Some of the services
Net4site provided to Systech under the Agreement was performed in India (2 R.R. at 35).
One of these clients, Texas-based Basic Energy Services, Inc. (“BES”), grew dissatisfied
with Systech’s services and sought to work directly with Net4site (C.R. at 133). When
BES contacted Padmanabhan about Net4site providing them services directly,
Padmanabhan instead directed BES to Infolligenz LLC, a New Jersey limited liability
company (C.R. at 133). The Net4site Parties never improperly interfered with Systech’s
relationship with BES.
Systech alleged that Net4site, Singla, and Padmanabhan had violated the
Agreement by providing services to BES directly (C.R. at 177). Systech threatened to
bring suit in Texas unless the Net4site Parties settled the dispute for the exorbitant sum of
$800,000 (C.R. at 121). Systech alleged that the Net4site Parties had violated the NonCompetition and Non-Solicitation provisions of the Agreement, provisions the Net4site
Parties contend are void and unenforceable under fundamental California law that
1
Systech’s Original Petition and Verified Application for Temporary Restraining Order and Temporary
and Permanent Injunction contained a Verification signed by Sanjeev Tyagi, Chief Executive Officer of
Systech Integrators Inc. That Verification, located at page 19 of the Petition, appears to be misplaced in
the middle of the Petition at page 12 of the Clerk’s Record for these proceedings.
5
evidences a public policy against non-competition agreements and contracts in restraint
of trade (C.R. at 177).
On June 10, 2011, the Net4site Parties filed suit in the Superior Court of the State
of California – County of Santa Clara (C.R. at 124-175).2 The Net4site Parties sought a
judicial declaration that the non-competition and non-solicitation provisions of the
Agreement were illegal under California’s public policy and statute (C.R. at 135-137.3
The Net4site Parties have not served any discovery or filed any subsequent lawsuits but
have filed a brief motion for precedence in the California Action in the hope of obtaining
a quick and efficient resolution of this dispute, one way or the other (C.R. at 203). The
trial court’s July 14, 2011 injunction barred the Net4site Parties from arguing the merits
of this first-filed motion on July 21, 2011, which was denied without argument.
In response to the California Action, Systech initiated arbitration with the
American Arbitration Association on June 22, 2011; the instant litigation on June 28,
2011; and a Petition to Compel Arbitration4 in the California Action on June 29, 2011
(C.R. at 6-181, 202, 315-325). Systech’s Petition to Compel Arbitration in the California
Action primarily sought the same relief it sought in the Texas Action – an order
compelling the Net4site Parties to submit to arbitration in Texas. Therefore, Systech has
2
The Santa Clara Superior Court is located just 2.6 miles from Systech’s headquarters in San Jose,
California (C.R. at 195).
3
See CAL. BUS. & PROF. CODE § 16600 (West) (“Except as provided in this chapter, every contract by
which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that
extent void.”).
4
California law requires that parties seeking to compel arbitration of a pending action petition the court
where the action is pending for that relief: “If a controversy referable to arbitration under an alleged
agreement is involved in an action or proceeding pending in a superior court, a petition for an order to
arbitrate shall be filed in such action or proceeding.” CAL. CIV. PROC. CODE § 1292.4 (West) (emphasis
added). Systech’s Petition to Compel Arbitration in the California Action has been withdrawn upon
direction of the lower court in the Texas Action (2 R.R. at 76).
6
waived any objection to California as a forum for dispute resolution by affirmatively
seeking case dispositive relief in the first-filed California Action.
On June 29, 2011, the Texas district court issued a temporary restraining order
enjoining the Net4site Parties from “taking any action whatsoever” in the California
Action (C.R. at 182-184). On July 14, 2011, the court issued the temporary injunction
order enjoining the Net4site Parties from “taking any action whatsoever” in the California
Action pending a final disposition of the Texas Action all while Systech could file
motions and seek relief in the same California forum (C.R. at 245-254). The temporary
injunction order also set the Texas Action for trial on October 18, 2011 (C.R. at 245254). The Net4site Parties gave notice of an accelerated interlocutory appeal of the trial
court’s temporary injunction order on July 29, 2011 (C.R. at 262-264). On August 5,
2011, Systech filed a motion to compel arbitration and to stay and abate litigation in the
Texas Action – again seeking the same relief it sought in its petition to compel arbitration
filed in the California Action (C.R. at 265-283).
V. SUMMARY OF THE ARGUMENT
Systech has failed to demonstrate a legal or factual basis for the extraordinary
relief it seeks in this action. The Net4site Parties filed the first suit in this dispute in
California. Texas law and long held principles of sister state comity require that this
Court recognize the California court’s dominant jurisdiction. Because it failed to file the
first action in this dispute, Systech cannot demonstrate any of the factors necessary for an
anti-suit injunction: 1) the Net4site Parties have not threatened the Texas court’s
jurisdiction as the California Action was the first filed suit; 2) the Net4site Parties have
7
not sought to evade Texas public policy as California has the same strong preference for
arbitration and enforcement of choice of law and forum selection contract provisions; 3)
the Net4site Parties have not initiated a multiplicity of suits and have just filed one suit –
the first-filed California Action in Systech’s home county; and 4) the Net4site Parties
have not engaged in vexatious or harassing litigation. Rather, Systech has engaged in
behavior that is both vexatious and harassing. Indeed, Systech actively filed papers and
engaged the litigation process in California on the very same day it sought extraordinary
relief from the Texas trial court. There is no authority in Texas to support the temporary
injunction order. Therefore, Systech did not make any showing of a probable right of
recovery that would support the issuance of the temporary injunction. Moreover, Systech
did not make any showing of an irreparable injury or no adequate remedy at law.
Accordingly, this Court must reverse the anti-suit injunction.
VI. ARGUMENTS AND AUTHORITIES
The Net4site Parties request that this Court reverse the anti-suit injunction issued
by the trial court. In issuing an anti-suit injunction against a first-filed action in the state
of California, the trial court has ignored and endangered the fundamental jurisprudential
principle of sister state comity and judicial restraint long-held by the Texas Supreme
Court, the United States Supreme Court and every state in this nation since the country
was founded. The Texas Supreme Court has defined “comity” as “a principle of mutual
convenience whereby one state or jurisdiction will give effect to the laws and judicial
decisions of another.” Gannon v. Payne, 706 S.W.2d 304, 307 (Tex.1986). The Texas
Supreme Court has followed the United States Supreme Court in recognizing the unique
8
grounds within which comity lies:
“Comity,” in the legal sense, is neither a matter of absolute obligation, on
the one hand, nor of mere courtesy and good will, upon the other. But it is
the recognition which one nation allows within its territory to the
legislative, executive or judicial acts of another nation, having due regard
both to international duty and convenience, and to the rights of its own
citizens, or of other persons who are under the protection of its laws.
Gannon, 706 S.W.2d at 306. No law has any effect, of its own force, beyond the limits of
the sovereignty from which its authority is derived. See id.
“Only comity can compel courts to act in a manner designed to advance the rule of
law among and between nations.” Gannon, 706 S.W.2d at 306. Any abuse of comity,
that “principal of mutual convenience,” would result in the devastation of Texas courts’
ability to effect judgment outside the borders of this state. Indeed, the Texas Supreme
Court has recognized the exceptional judicial restraint with which comity, especially in
cases of anti-suit injunctions, should be exercised: “[t]he principle of comity requires that
courts exercise the power to enjoin foreign suits ‘sparingly, and only in very special
circumstances.’” Golden Rule Insurance Co. v. Harper, 925 S.W.2d 649, 651
(Tex.1996); Gannon, 706 S.W.2d at 306. No such circumstances exist here.
Despite the fact that it was an abuse of discretion for the trial court to enter the
temporary injunction order and the order is contrary to several decisions of the Texas
Supreme Court, the Net4site Parties have complied dutifully with the temporary
injunction order to avoid the danger identified by the Gannon court: “An anti-suit
injunction necessarily restricts a foreign court’s ability to exercise its jurisdiction. The
foreign court cannot be compelled to recognize such an injunction, and if it responds by
9
issuing a similar injunction, no party may be able to obtain a remedy.” Gannon, 706
S.W.2d at 306-07. So far, the Net4site Parties have been materially harmed by obeying
the ultra vires injunction, including improperly being barred from arguing a motion for
trial priority and performing other necessary actions in the California suit; they have also
expended substantial sums in retaining local counsel and flying California counsel
familiar with the case to Texas twice for a lawsuit addressed first in California.
Continued application of the temporary injunction order will further restrict the Net4site
Parties’ right to proceed with the first-filed California litigation.
Besides the clear harm to the Net4site Parties, the trial court’s decision will
embolden other Texas courts to issue their own anti-suit injunctions against first-filed
actions in sister states, and reciprocally induce courts in those sister states into enjoining
parties from proceeding in Texas courts to leave parties without the possibility of
obtaining a remedy in their chosen forum of Texas. The trial court has set Texas down
this path without even a modicum of legal support. For good reason and hewing to
venerable precedent, no Texas appellate court has ever permitted a lower court to enjoin a
single, first-filed proceeding in a sister state court under similar facts to this case.
In addition to violating the principle of comity, the facts of this dispute fail to
satisfy any of the four bases identified by the seminal Golden Rule case that could
theoretically be grounds for an anti-suit injunction (which have only survived appeal
when they concern injunctions against parallel proceedings in Texas itself). Systech does
not have a probable right of recovery and has not shown any irreparable injury in the
interim.
This Court should reverse the trial court’s injunction.
10
Not granting the
requested relief will allow the trial court to continue to disrupt the carefully balanced
principle of comity. Moreover, while the improper anti-suit injunction remains in place,
the Net4site Parties are prevented from arguing motions, appearing at case management
conferences, and pursuing relief in the first-filed matter in California. Only this Court’s
reversal can prevent irreparable harm to Texas litigants and others threatened by trial
courts’ refusals to honor the principle of comity.
A.
Standard Of Review Over Temporary Injunction Order
To obtain temporary injunctive relief, an applicant must plead a cause of action
against the defendant, and provide evidence to support a finding that there is a probable
right to the relief sought, and a probable, imminent, and irreparable injury. See Butnaru
v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). The trial court’s temporary
injunction order is subject to an abuse of discretion standard. See Christensen v. Integrity
Ins. Co., 719 S.W.2d 161 (Tex.1986). A trial court abuses its discretion if its decision is
“arbitrary, unreasonable, and without reference to guiding principles.” Goode v.
Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997). The trial court missed on at least two
counts.
First, Systech failed to present any evidence to support a probable right of
recovery. Indeed, by failing to apply the four standards set forth in Golden Rule, the trial
court’s temporary injunction order was indeed arbitrary, unreasonable and in complete
disregard of guiding Texas Supreme Court authority. There has been no threat to the trial
court’s jurisdiction; there has been no attempted evasion of important Texas public
policy; the Net4site Parties have not initiated a multiplicity of suits; and the Net4site
11
Parties have not subjected Systech to vexatious or harassing litigation. Instead, the
Net4site Parties brought suit in California – a court of competent jurisdiction where three
of the four parties reside – and with that suit have presented robust challenges to the
forum-selection provision upon which Systech relies.
Second, Systech failed to present any evidence of an imminent, irreparable injury
in the interim. Therefore, this Court will must reverse the temporary injunction order.
Systech may file any and all challenges that it has to the California Action in that suit. If
correct, the California court will dismiss that suit. Systech’s alleged harm in litigating in
California, when it is located in California and began this case with California counsel, is
merely speculation, was not proven below and is not sufficient to support the temporary
injunction order.
B.
Systech Provided No Evidence Of A Probable Right Of Recovery.
1.
The Temporary Injunction Order Was Unsupported By Texas Law.
This litigation involves the same parties, the same facts, and the same dispute
presently pending in the first-filed California Action. The California Action, brought by
a California based company, Net4site, a California resident, Singla, and an employee of a
California company, Padmanabhan, seeks declaratory and injunctive relief against
another California party, Systech (C.R. at 129). The Net4site Parties seek a declaration in
the California Action that the Agreement entered into by Systech and Net4site contained
void and illegal non-solicitation and non-competition provisions that can not be enforced
against California citizens in light of strong California public policy and statute (C.R. at
135-136). The temporary injunction order, prohibiting the Net4site Parties from
12
prosecuting a single first-filed action in a sister state, is relief rarely contemplated in
Texas jurisprudence, is only dubiously granted, and is routinely reversed when granted.
In the three leading Texas Supreme Court decisions over the last twenty-five years
on this subject, the Court each time considered whether a Texas court should issue an
injunction to prevent a party before that court from litigating exactly the same case in the
courts of another state. Each time the Supreme Court of Texas has reversed a court of
appeals that upheld such an injunction. Golden Rule, 925 S.W.2d 649; Gannon, 706
S.W.2d 304; Christensen, 719 S.W.2d 161. In the single case since Gannon in which an
appellate court enjoined a party from prosecuting a first-filed action in a sister state, the
Texas Supreme Court directed the district court to dismiss the subsequently filed Texas
action. See In re AutoNation, Inc., 228 S.W.3d 663 (Tex.2007); AutoNation, Inc. v.
Hatfield, 186 S.W.3d 576 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
To
summarize, there is no legal support for the trial court’s temporary injunction order.
Systech was required to clear a high bar, a standard that it did not meet, before the
trial court enjoined the Net4site Parties’ participation in litigation pending in a sister
state. This Court would be making new law were it to maintain the injunction in the face
of overwhelming precedent. As discussed earlier, “[t]he principle of comity requires that
courts exercise the power to enjoin foreign suits ‘sparingly, and only in very special
circumstances.’” Golden Rule, 925 S.W.2d at 651 (quoting and citing Christensen, 719
S.W.2d at 163; Gannon, 706 S.W.2d at 306). A court’s failure to adhere to the principal
of comity coupled with a foreign jurisdiction’s issuance of its own anti-suit injunction
would result in neither party being able to obtain a remedy. See Gannon, 706 S.W.2d at
13
306-07. The party seeking the injunction must show that “a clear equity demands” the
injunction.
See Golden Rule, 925 S.W.2d at 651. “[O]nly in the most compelling
circumstance does a court have discretion to issue an anti-suit injunction.” Gannon, 706
S.W.2d at 306 (citations omitted). Indeed, a court may only issue the anti-suit injunction
granted by the trial court in order “to prevent an irreparable miscarriage of justice.”
Golden Rule, 925 S.W.2d at 652. No such compelling circumstances or danger of an
irreparable miscarriage of justice exist in the present dispute; indeed, no such compelling
arguments were even presented to the trial court, much less proven.
The Court in Golden Rule affirmed the four bases that can possibly be grounds for
the anti-suit injunction granted by the lower court: “1) to address a threat to the court’s
jurisdiction; 2) to prevent the evasion of important public policy; 3) to prevent a
multiplicity of suits; or 4) to protect a party from vexatious or harassing litigation.”
Golden Rule, 925 S.W.2d at 651. Systech did not, and cannot, allege facts necessary to
justify the issuance of anti-suit injunction on any of the bases set forth in Golden Rule.
2.
There Was No Threat To The Trial Court’s Jurisdiction.
“The general rule is that when a suit is filed in a court of competent jurisdiction,
that court is entitled to proceed to judgment and may protect its jurisdiction by enjoining
the parties to a suit subsequently filed in another court of this state. This same rule
applies to suits subsequently filed in the courts of sister states.” Gannon, 706 S.W.2d at
305-06 (emphasis added) (citations omitted).
Systech’s initiation of the Texas Action was a direct threat to the California
court’s jurisdiction. There was no threat to the trial court’s jurisdiction as that court’s
14
jurisdiction had not yet been exercised at the time the California Action was initiated.
The California Action was the first-filed action, and Systech usurped that court of its
dominant jurisdiction by initiating the instant action and obtaining the temporary
injunction order. Systech has explicitly acknowledged the dominance of the California
Action by filing a motion to compel arbitration in California. Under this Golden Rule
factor, it is Systech that should be enjoined and this action that should be abated, not the
Net4site Parties’ prosecution of the California Action. The Net4site Parties have not filed
any suits subsequent to their original first-filed action that may provide grounds for the
issuance of an issuance of an anti-suit injunction.
Systech relied on Gonzales v. Reliant Energy, and contended that the trial court
had legal authority to issue its temporary injunction order. 159 S.W.3d 615 (Tex. 2005).
However, Gonzales involved a completely different set of facts and, critically, did not
involve the principle of sister state comity at play in this case. In Gonzales, it was
plaintiff Gonzales who initiated a multiplicity of actions by first filing a wrongful death
and survival action in Hidalgo County, Texas, then filing an identical wrongful death and
survival action in Harris County, Texas, ten days later. Gonzales only invoked the
jurisdiction of Texas state courts and it was only Gonzales who initiated those actions.
The Gonzales decision did not implicate the strong public policy of a sister state or the
legality of contract provisions; instead, Gonzales concerned statutory venue provisions
for wrongful death actions and the ability of a Texas probate court to interfere with the
jurisdiction of a Texas district court. None of the factors relevant to the Gonzales
decision are present in the instant case. Systech’s reliance on Am. Intern. Specialty Lines
15
Ins. Co. v. Triton Energy Ltd., is similarly misguided. 52 S.W.3d 337, 340 (Tex. App.—
Dallas 2001, pet. dism’d w.o.j.) (“Triton”).
The Triton court affirmed an anti-suit
injunction against a subsequently filed action in California. See id.
3.
The Net4site Parties Have Not Sought To Evade Important Texas
Public Policy.
In filing the California Action, the Net4site Parties have not attempted to evade
any public policy of Texas. Rather, Texas and California public policy are the same on
the relevant issues in this dispute.
For instance, the trial court completely ignored
California’s public policy favoring arbitration and contractual, choice-of-law and forum
clauses when it concluded that the Net4site Parties sought to subvert Texas public policy
favoring the same. That California favors both arbitration and contractual, choice-of-law
clauses is beyond dispute. As recently as February 24, 2011, the Supreme Court of
California confirmed the state’s “strong public policy in favor of arbitration as a speedy
and relatively inexpensive means of dispute resolution.” Sonic-Calabasas A, Inc. v.
Moreno, 51 Cal. 4th 659, 697, 247 P.3d 130, 153 (2011) (citations omitted). The same
court noted that California law establishes “a presumption in favor of arbitrability.” Id.
The substantive laws of California and Texas do not differ in any material regard on this
point.
As with arbitration, the Supreme Court of California has affirmed that there are
“strong policy considerations favoring the enforcement of freely negotiated choice-of-law
clauses.” Washington Mut. Bank, FA v. Superior Court, 24 Cal. 4th 906, 917, 15 P.3d
1071, 1078 (2001). “Our conclusion rests on the choice-of-law rules derived from
16
California decisions and the Restatement Second of Conflict of Laws, which reflect
strong policy considerations favoring the enforcement of freely negotiated choice-of-law
clauses.” Nedlloyd Lines B.V. v. Superior Court, 3 Cal. 4th 459, 462, 834 P.2d 1148,
1149 (1992). California would take Texas’s interest into account in any choice-of-law
analysis. Nedlloyd Lines B.V., 3 Cal. 4th at 466 (“If, however, there is a fundamental
conflict with California law, the court must then determine whether California has a
‘materially greater interest than the chosen state in the determination of the particular
issue ....’ (Rest., § 187, subd. (2).)”).
The trial court’s findings that the Net4site Parties sought to avoid arbitration by
initiating the California Action similarly holds no weight. California courts are as likely
to compel arbitration as Texas courts. California courts provide parties the means to
compel arbitration, something Systech is well aware of as it filed a petition to compel
arbitration in the California Action. Systech has not demonstrated that the Net4site
Parties sought to evade any Texas public policy by initiating the California Action, and
this Court should not affirm the anti-suit injunction on that basis.
In Triton, where the court found that an anti-suit injunction was necessary to
prevent the evasion of an important public policy, the court sought to prevent an
insurance company from attempting to skirt its obligations. Triton, 52 S.W.3d at 341. As
Triton was then headquartered in Dallas County, Texas, the Triton court’s decision
directly protected a Texas party. Sherman v. Triton Energy Corp., 124 S.W.3d 272, 275
(Tex. App.—Dallas 2003, pet. denied). No such implications are present in the instant
case where a California corporation has sought the refuge of Texas law in its dispute with
17
other California parties.
Finally, notwithstanding strong California and Texas public policy favoring
arbitration, that policy does not generally support dismissing claims filed by those that
have not agreed to arbitration or a particular forum. Singla and Padmanabhan never
agreed to the alleged arbitration agreement in their individual capacities. They signed all
agreements with Systech on behalf of Net4site as Net4site executives. “If a person signs
a contract in her corporate capacity, she is not individually a party to the contract.” Wolf
v. Summers-Wood, L.P., 214 S.W.3d 783, 792 (Tex. App.—Dallas 2007, no pet.). Singla
and Padmanabhan are not, and cannot, be bound to any provision of the Agreement
therein. Yet, the trial court entered the temporary injunction order precluding those
individuals from prosecuting their claims in the forum of their choice. That was simply
wrong and an abuse of discretion.
4.
This Dispute Does Not Involve A Multiplicity Of Suits.
The Net4site Parties initiated a single suit in this dispute – the first-filed California
Action. “A single parallel proceeding in a foreign forum, however, does not constitute a
multiplicity nor does it, in itself create a clear equity justifying an anti-suit injunction.”
Christensen, 719 S.W.2d at 163. See also Gannon, 706 S.W.2d at 307 (“[I]f the principle
of comity is to have any application, a single parallel proceeding filed in a party’s home
country cannot justify issuing an anti-suit injunction.”). “Such a suit must be allowed to
proceed absent some other circumstances which render an injunction necessary ‘to
prevent an irreparable miscarriage of justice.’ Merely because the suits present identical
issues does not make their proceeding an ‘irreparable miscarriage of justice.’” Golden,
18
925 S.W.2d at 652 (citations omitted). “Typically, the multiplicity argument supports
issuance of an anti-suit injunction when a party files numerous lawsuits to relitigate
issues in different courts.” AVCO Corp. v. Interstate Sw., Ltd., 145 S.W.3d 257, 266
(Tex. App.—Houston [14th Dist.] 2004, no pet.).
It was Systech, not the Net4site Parties, who multiplied these legal proceedings.
After the Net4site Parties’ single, first-filed suit, Systech initiated the Texas Action and
the Arbitration, then further proceeded to avail themselves of California jurisdiction in
filing a motion to compel arbitration there. This Court cannot allow Systech to initiate a
multiplicity of suits and then cite the multiplicity of suits as grounds for an anti-suit
injunction.
5.
The Net4site Parties Have Not Engaged In Vexatious Or Harassing
Litigation.
The Net4site Parties filed a single lawsuit, the California Action, in the Superior
Court of California – County of Santa Clara (C.R. at 129). The Santa Clara Superior
Court is located only 2.6 miles from Systech’s headquarters, and within the same state as
the lawyers who sent the first of Systech’s threatening letters to a California law firm
concerning a dispute between two California companies (2 R.R. at 29). The Net4site
Parties have not served any discovery or filed any subsequent lawsuits but filed a Motion
for Precedence in the California Action in the hope of obtaining a quick and efficient
resolution of this dispute (C.R. at 203).
The Net4site Parties filed the Motion for
Precedence in the recognition that the California Action concerned primarily questions of
law and there was no need for extensive discovery. When Systech opposed the Motion
19
for Precedence, the Net4site Parties could not file any reply papers, nor did they request
oral arguments to challenge the California court’s tentative order denying the motion, as
they were barred from arguing for expedited relief by the Texas trial court’s unwarranted
temporary injunction (2 R.R. at 86)).
Systech’s cited standards for harassing litigation, Triton and In re Autonation,
provided no grounds for issuing an anti-suit injunction in this case. See Triton, 52 S.W.3d
at 342; In re Autonation, 228 S.W.3d at 667-668. In Triton, the court found evidence of
vexatious or harassing litigation when AISLIC refused to grant Triton an extension for
submitting an answer, then sought summary judgment on an abbreviated schedule.
Triton, 52 S.W.3d at 342. No such circumstances exist in this case. In In re Autonation
the court noted that initiating an action in contravention of a forum selection clause
amounted to vexatious litigation. In re Autonation, 228 S.W.3d 667-668. However,
Autonation involved parties from two different states, not primarily California parties.
See id. Autonation also did not face a significant challenge to the forum-selection clause
or implicate the strong public policies of a sister state as discussed further below.
In contrast to the Net4site Parties’ actions, Systech initiated the Texas Action and
the Arbitration nearly 1,700 miles from their headquarters, Net4site’s headquarters, and
Singla’s residence. Systech also sought the temporary restraining order granted in this
action after only notifying counsel for the Net4site Parties of the hearing at 6:41 p.m.
local time the day before the hearing, knowing full well that counsel was located in San
Francisco, California (C.R. at 203, 205). Systech then filed a petition to compel
arbitration in the California Action the same day Systech was petitioning the trial court in
20
this action for extraordinary relief but failed to inform the court of this significant fact
concerning its material involvements in the first-filed action (2 R.R. at 75-76). Systech
then filed a similar motion to compel arbitration and to stay and abate litigation the Texas
Action – the very action that Systech initiated and in which the ultimate relief sought was
an injunction compelling the Net4site Parties to arbitrate (C.R. at 265). The trial court in
this case allowed Systech to have its cake and eat it too. Although the court asked
Systech to withdraw its pending motion in California to compel arbitration, Systech was
and is free to file motions and conduct activities in the California Action, while the
Net4site Parties would be precluded from responding or from filing their own pleadings
(C.R. at 253-254; 2 R.R. at 82-85). Systech, and not the Net4site Parties, have engaged
in vexatious and harassing conduct. This matter could have been resolved in Santa Clara
County, California alone – home to Systech, Net4site, and Singla – and need not have
been brought to a venue at least 1,000 miles from any of the parties. Put simply, Texas
has no interest in hearing this case.
Application of the relevant facts to the four bases for an anti-suit injunction cited
in Golden Rule demonstrates that an anti-suit injunction should not have been granted.
Instead, and while this issue is not before the Court, it is Systech’s actions that would
have justified the issuance of an anti-suit injunction: Systech filed suit and threatened the
jurisdiction of the first-filed action; Systech is attempting to subvert the strong public
policy of the State of California by initiating suit in Texas; Systech has initiated a
multiplicity of lawsuits; and it was Systech that engaged in vexatious and harassing
21
litigation.5
C.
The Net4site Parties’ First-Filed Suit Deserves Priority.
Time and time again, the Texas Supreme Court has honored the plaintiff’s choice
of forum and has granted dominant jurisdiction to the court with the first-filed case.
“When a matter is first filed in another state, the general rule is that Texas courts stay the
later-filed proceeding pending adjudication of the first suit.” In re AutoNation, Inc., 228
5
The California Supreme Court has so far followed Texas’s lead in its rulings on anti-suit injunctions
involving actions in sister states:
The Texas Supreme Court has observed that a single parallel proceeding in a foreign
forum does not constitute a “multiplicity of suits.” (Golden Rule Ins. Co. v. Harper
(Tex.1996) 925 S.W.2d 649, 651.) Arpels v. Arpels (1960) 8 N.Y.2d 339, 341, 207
N.Y.S.2d 663, 170 N.E.2d 670, held that the use of injunctive relief “to prohibit a person
from resorting to a foreign court is a power rarely and sparingly employed, for its
exercise represents a challenge, albeit an indirect one, to the dignity and authority of that
tribunal.” (See also Pfaff v. Chrysler Corp. (1992) 155 Ill.2d 35, 43, 182 Ill.Dec. 627, 610
N.E.2d 51 [court's equity powers must be invoked with great restraint to avoid conflicts
and reciprocal interference with jurisdiction]; Gannon v. Payne (Tex.1986) 706 S.W.2d
304, 306 [power to enjoin proceedings pending in a foreign jurisdiction should be
exercised sparingly and under special circumstances only].)
Advanced Bionics Corp. v. Medtronic, Inc., 29 Cal. 4th 697, 705, 59 P.3d 231, 236 (2002)
The California Supreme Court has so far also held views similar to that of Texas when it comes to
comity:
The comity principle also supports our conclusion. Comity is based on the belief “ ‘ “that
the laws of a state have no force, proprio vigore, beyond its territorial limits, but the laws
of one state are frequently permitted by the courtesy of another to operate in the latter for
the promotion of justice, where neither that state nor its citizens will suffer any
inconvenience from the application of the foreign law. This courtesy, or comity, is
established, not only from motives of respect for the laws and institutions of the foreign
countries, but from considerations of mutual utility and advantage.” ’ ... ‘The mere fact
that state action may have repercussions beyond state lines is of no judicial significance
so long as the action is not within that domain which the Constitution forbids.’ ” (Estate
of Lund (1945) 26 Cal.2d 472, 489, 159 P.2d 643; see also Gannon v. Payne, supra, 706
S.W.2d at p. 308 [involving parallel actions in Canada and Texas].) The comity principle
requires that we exercise our power to enjoin parties in a foreign court sparingly, in line
with the policy of judicial restraint discussed above.
Advanced Bionics Corp. v. Medtronic, Inc., 29 Cal. 4th 697, 707, 59 P.3d 231, 237
(2002)
22
S.W.3d at 670. “As a rule, when cases involving the same subject matter are brought in
different courts, the court with the first-filed case has dominant jurisdiction and should
proceed, and the other cases should abate.” Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex.
2001). Honoring the plaintiff’s choice, and abating successively filed actions, allows for
the conservation of judicial resources and the avoidance of delay, but perhaps more
importantly, “prevent[s] races from court to court by vigilant counsel.” Id. Systech
cannot contest that the Net4site Parties filed first – a fact acknowledged by the trial court
– and this Court should order the trial court to cede dominant jurisdiction to the
California Action.
The Net4site Parties initiated the California Action on June 10, 2011, 12 days
before Systech filed its demand for arbitration on June 22, 2011, and 18 days before it
initiated the Texas Action on June 28, 2011. Under the first-filed action rule discussed in
In re Autonation, Perry, and Wyatt this Court must recognize the California Action’s
dominant jurisdiction and reverse the temporary injunction order enjoining the Net4site
Parties’ prosecution of the California Action. Wyatt v. Shaw Plumbing Co., 760 S.W.2d
245, 248 (Tex.1988) (“Defendants are simply not at liberty to decline to do battle in the
forum chosen by the plaintiff.”).
D.
Systech Offered No Evidence Of An Imminent, Irreparable Injury In The
Interim.
This Court should reverse the temporary injunction order because Systech offered
no evidence of an imminent, irreparable injury in the interim.
To be entitled to a
temporary injunction, the applicant must plead a cause of action and show a probable
23
right to recover on that cause of action and a probable, imminent, and irreparable injury
in the interim. See IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191 (Tex. App.
—Fort Worth 2005, no pet.). The Texas courts have held that the mere possibility of an
injury in the future is insufficient to justify the issuance of a temporary injunction. See
Mother & Unborn Baby Care v. Doe, 689 S.W.2d 336 (Tex. App.—Fort Worth 1985,
writ dism'd w.o.j.). Damages are usually an adequate remedy at law and the requirement
of demonstrating an interim injury necessitating a temporary injunction is not to be taken
lightly. Walling v. Metcalfe, 863 S.W.2d 56 (Tex. 1993). In the context of a temporary
injunction, the harm inquiry is not the harm that a plaintiff would incur without the
ultimate relief requested in the suit, but rather, what harm would the plaintiff sustain in
the interim without temporary relief. See Mejerle v. Brookhollow Office Prod. Inc., 666
S.W.2d 192, 193 (Tex. App.—Dallas 1983, no writ). “An injunction that fails to identify
the harm that will be suffered if it does not issue must be declared void and be dissolved.”
Fasken v. Darby, 901 S.W.2d 591, 593 (Tex. App.—El Paso 1995, no writ). See also
Metra United Escalante, L.P. v. Lynd Co., 158 S.W.3d 535, 541 (Tex. App.—San
Antonio 2004, no pet.).
Moreover, a party requesting a temporary injunction has the duty to negate the
existence of adequate legal remedies. See Hancock v. Bradshaw, 350 S.W.2d 955, 957
(Tex. Civ. App.—Amarillo 1961, no writ). “Adequate remedy at law preventing relief by
injunction means a remedy which is plain and complete, and as practical and efficient to
the end of justice and its prompt administration as a remedy in equity.” Id. “Injunctive
relief ought not be granted unless it appears that the complainant has no adequate remedy
24
at law for prevention or redress of wrongs and grievance of which complaint is made.”
Id. “The granting of an injunction in the face of an adequate remedy at law is an
erroneous abuse of the courts discretionary powers.” Id. See also Alert Synteks, Inc. v.
Jerry Spencer, L.P., 151 S.W.3d 246 (Tex. App.—Tyler 2004, no pet.).
Here, the trial court found that violating the “forum selection clause” and pursuing
litigation in California was the basis of the harm finding. The Net4site Parties have valid
reasons for challenging that clause, the arbitration clause, and the choice-of-law clause.
For example, the individual Appellants did not even sign an agreement in their individual
capacities that would require any arbitration or any particular forum for dispute
resolution. If Systech is correct, it can raise any and all of its arguments in the California
Action and have that court dismiss the suit. If a forum-selection clause is enforceable, a
California court will dismiss the suit and allow the plaintiff to refile in the correct forum.
Berg v. MTC Electronics Technologies, 61 Cal. App. 4th 349, 354, 71 Cal. Rptr. 2d 523,
526 (Cal. Ct. App. 1998); Miller-Leigh LLC v. Henson, 152 Cal. App. 4th 1143, 1146, 62
Cal. Rptr. 3d 83, 84 (Cal. Ct. App. 2007). In fact, Systech did file a motion to compel
arbitration in the California Action. This was at the same time as the trial court precluded
the Net4site Parties from conducting any activity in the California Action.
Moreover, Systech can file a motion to abate the California Action if it is correct
that the second-filed action should take priority. The fact that Systech can raise its
arguments in the California Action and seek a dismissal or abatement means that Systech
had an adequate legal remedy. For example, an anti-suit injunction is not appropriate if a
plea in abatement in the second court would provide an adequate remedy. See Atkinson
25
v. Arnold, 893 S.W.2d 294, 297-298 (Tex. App.—Texarkana 1995, no writ) (temporary
injunction set aside when party failed to secure ruling on plea in abatement). Moreover,
Systech has no “harm,” imminent or otherwise, from litigating its arguments about
arbitration in California as opposed to Texas. Therefore, this Court should reverse the
temporary injunction order for that reason as well.
VII. CONCLUSION AND PRAYER
The Net4site Parties ask this Court reverse the trial court’s temporary injunction
order, which was issued in direct contravention of decades of Texas legal authority. The
temporary injunction order endangers the carefully balanced principle of comity that exist
between the sister states of this nation. Not granting the requested relief will plunge this
state’s judiciary on a path through which its decisions will not be acknowledged outside
the borders of the state. It would be especially tenuous to set the judiciary down this path
in a situation where no Texas parties are parties to this action and all applicable Texas
authority commands the exact opposite result.
Systech was required to clear a very high bar to warrant the issuance of an antisuit injunction enjoining the Net4site Parties’ prosecution of the first-filed California
Action. Systech did not clear that bar; indeed, there is no legal or factual support for the
relief Systech was granted in this matter. Texas courts have repeatedly and consistently
reversed anti-suit injunctions such as the one in this case – and counsel for the Net4site
Parties have been unable to identify a single exception to this rule. Given the utter lack
of legal and factual support for the instant injunction, this Court should reverse the
injunction. The Net4site Parties filed first, have not threatened the dominant court’s
26
jurisdiction, have not attempted to evade important Texas public policy, have not
engaged in a multiplicity of lawsuits, and have not engaged in vexatious or harassing
litigation. Systech did not provide evidence of any facts sufficient to warrant an anti-suit
injunction, nor cannot it cite any case law demonstrating a lower standard should apply to
its request.
As such, this Court should reverse the temporary injunction order and award the
Net4site Parties any and all other relief to which they are entitled.
27
Respectfully submitted,
Dhillon & Smith LLP
/s/ David F. Johnson
Harmeet K. Dhillon
CA State Bar No. 207873*
[email protected]
214 Grant Ave. – Suite 400
p: 415.433.1700
f: 415.520.6593
James David Brown
[email protected]
Winstead PC
5400 Renaissance Tower
1201 Elm Street
Dallas, TX 75270
p: 214.745.5234
f: 214.745.5390
David F. Johnson
[email protected]
Winstead PC
p: 817.420.8200
f: 817.420.8201
Attorneys for Appellants Net4site
LLC, Chandra Singla, and
Nagasundaram Padmanabhan
28
CERTIFICATE OF SERVICE
I hereby certify that, on the 13th day of September, 2011, a copy of this document
was forwarded, via electronic mail and Certified Mail, Return Receipt Requested, to
Appellee’s counsel of record:
Rodolfo Rodriguez, Esq.
Demarron A. Berkley, Esq.
Gruber Hurst Johansen Hail Shank LLP
Fountain Place
1445 Ross Avenue – Suite 2500
Dallas, TX 75202
Fax 214/855-6808
____/s/ David F. Johnson__________
Counsel of Record
29
APPENDIX
A.
Order Granting Temporary Injunction
B.
ACS Systech Integrators – Net4site, LLC Staffing Services Agreement
30
CAUSE NO. 11-07945
SYSTECH INTEGRATORS, INC.,
Vida ACS SYSTECH
INTEGRATORS, INC.
acr7A000104
IN THE DISTRICT COURT
Plaintiff,
134th JUDICIAL DISTRICT
VS.
NET4SITE, LLC,
CHANDRA SINGLA, and
NAGASUNDARAM PADMANABHAN
Defendant.
DALLAS COUNTY, TEXAS
ORDER GRANTING TEMPORARY INJUNCTION
On June 29, 2011, the Court heard and granted the Application for Temporary
Restraining Order of Plaintiff Systech Integrators, Inc. ("Svstech" or "Plaintiff') as asserted in
Plaintiff's Original Petition and Application for Temporary Restraining Order awl Temporary
and Permanent Injunctive Relief against Defendants Net4Site, LLC ("Net4Site"), Chandra Singla
"Sinzla"), and Nagasundaram Padmanabhan ("Padmanabhan") (collectively, Net4Sitc, Sin&
and Padmanabhan hereafter "Defendants"). The Court set a hearing for Plaintiff's request for
temporary injunction on July 13, 2011.
On July 13, 2011, Plaintiff and Defendants appeared in person and by and through their
counsel of record for a hearing on Plaintiff's Application for Temporary Injunction. Plaintiff
proceeded to present evidence and argument to the Court regarding Plaintiff's Application for
Temporary Injunction. Having considered the parties pleadings, motions, responses, the
evidence admitted and arguments of counsel, thc Court is of the opinion that this temporary
injunction should be ordered.
The Court finds as follows:
EXHIBIT
3
PAGE 1
-
2
'
1. On March 30, 2007, Systech entered into a "Master Services Agreement" (the
"Svstech/Basic Energy Agreement") with Basic Energy Services, Inc., of
Midland, Texas ("Basic Energy").
2. On October 30, 2008, Systcch and Net4Site entered into the "Staffing Services
Agreement" (the "Systech/Net4Site Agreement");
3. Section 45 of the Systech/Net4Site Agreement provides:
This Agreement shall be governed by, interpreted,
construed, and enforced in accordance with the laws of the State of Tcxas,
without reference to the principles of conflict of laws. Lawsuits brought by
[Systechl solely for injunctive relief may be brought in any court of competent
jurisdiction. All other lawsuits brought by either party under this Agreement shall
only be brought in a court of competent jurisdiction in the State of Texas.
45. GOVERNING LAW
4. Plaintiff alleges that (a) Net4Site violated one or more provisions of the
Systech/Net4Site Agreement, including without limitation Sections 9
("Communication with ACS Systech Integrators Client"), 12 ("NonSolicitation"), and 13 ("Non-Compete"), and that (b) Nct4Site, Singla, and/or
Padmanabhan, individually or collectively, tortuously interfered with the Systech/
Basic Energy Agreement.
5. Section 40 of thc Systech/Net4Site Agreement requires that the parties submit
"any controversy or claim arising out of or relating to this Agreement, or any
alleged breach thereof," to binding arbitration in Dallas, Texas, by the American
Arbitration Association.
6. On or about June 10, 2011, Defendants filed suit against Plaintiff in a matter
styled Net4Site, LLC. Chandra Singla. and Nag Padmanabhan
Systech
Imegrators, Inc., in the Superior Court of the State of California, Santa Clara
County, assigned case number 1 1 1CV202800 (the "Californ ia Lawsu it").
PAGE 2
2 4 '6
7. In the California Lawsuit, Defendants seek declarations that, among other things:
a. "California Business & Professions Code section 16600 applies to and bars
the Non-Competition clause at issue here; and that California is the proper
forum to determine the enforceability of the provision; and that California law
governs its enforceability,"
b. "California Busincss & Professions Code section 16600 applies to and bars
the Non-Solicitation clause at issue here; and that California is thc proper
forum to determine the enforceability of the provision; and that California law
governs its enforceability,"
c. "the Non-Competition and Non-Solicitation clauses of Systech's Staffing
Services Agreement signed by Net4Site, and any other non-competition
provisions found in the Agreement or otherwise attcmpted to be enforced
against the Plaintiffs by Systcch, constitute unlawful restraints of trade in
violation of California Business & Professions Code section 16600 and
California's long-recognized and fundamental public policy against such
provisions, and thc inclusion of the Non-Compete and Non-Solicitation
clauses invalidates the Agreement in its entirety, including the choice of law
and forum selection clauses, or in the alternative, the non-competition
provisions invalidates thc Non-Competition, Non-Solicitation, and choice of
law and forum selection provisions of thc Agreement."
8_ On June 22, 2011, Plaintiff filed a Statement of Claim and Demand for
Arbitration with the American Arbitration Association in Dallas, Texas (the
"AAA Arbitration").
PAGE 3
24
9. On June 28, 2011, Plaintiff filed the above-captioned and styled lawsuit (the
"Dallas Lawsuit").
The Court finds that the entry of a temporary injunction is necessary to prevent imminent
and irreparable harm to Plaintiff. The Court finds, based on the sworn application, the evidence
admitted, and the argument of counsel, that Plaintiff has shown a probable right on final trial to
the relief sought and probable injury in the interim. Plaintiff has introduced evidence that tends
to show that 1) a cause of action against the Defendants exists; 2) a probable right to the relief
sought exists; and 3) there is probable, imminent, and irreparable injury in the interim.
Specifically, the Court finds that:
(a)
Defendant Singla and Defendant Padmanabhan are the respective
President and Vice President of Defendant Net4Site, LLC, and both
provided services pursuant to the Systech/Net4Site Agreement in Midland,
Texas;
(b)
Thc Court has in personam jurisdiction over the Dcfcndants in this cause;
(c)
Defendant Singla and Defendant Padmanabhan were and have been at all
times relevant to this action in active concert and participation with
Defendant Net4Site, LLC, regarding the acts and conduct of Defendant
Net4Site, LLC, which are the subject of Plaintiff's claims in this cause;
(d)
Defendants do not assert or claim that the forum selection clause,
arbitration clause or any clause contained in the Systech/Net4Site
Agreement at issue in this cause are invalid for reasons of fraud or
overreaching;
(e)
The enforcement of the forum selection clause would not be unreasonable
PAGE 4
_
24
or unjust;
(0
The enforcement of the forum selection clause would not contravene a
strong public policy of this State;
(g)
Defendants agreed to the forum selection clause and finds that Dallas,
Texas would not be seriously inconvenient for trial;
(h)
There are no special and unusual circumstances that developed after the
execution of the Systech/Net4Site Agreement that would make litigation
in Texas so gravely difficult and inconvenient that the Defendants would
for all practical purposes be deprived of their day in court;
(i)
Defendants do not dispute that the claims they are asserting in their
California lawsuit are covered by the Systech/Net4Sitc Agreement and the
arbitration and forum selection clauses;
G)
Plaintiffs have shown a probable right of recovery against Defendants
Net4Site, LLC, Chandra Singla, and Nagasundaram Padmanabhan and a
likelihood of success on the merits;
(k)
Harm is imminent in that thc forum selection, dispute resolution,
arbitration, and choice of law clauses of the Systech/Net4Site Agreement,
as well as Plaintiff's right to specific contractual privileges and benefits,
including but not limited to thc contracted dispute resolution procedure
and the arbitration procedures for resolving disputes between it and
Defendants, will be mooted if Defendants continue to prosecute the
California Lawsuit.
(1)
If the Court does not issue a temporary injunction, Plaintiff will be
ORDER GRANTING TEMPORARY INJUNCTION •
PAGE 5
249
irreparably injured because Defendants, in violation of their contractual
agreement with Plaintiff, will prosecute their claims in the California State
Court thereby defeating, and rendering a nullity, Plaintiff's contractual
right to exercise the parties agreed dispute resolution procedure and
arbitration clause and will defeat Plaintiff's right to seek relief in the
agreed contractual forum;
(m)
Plaintiff has no adequate remedy at law without the protections of a
temporary injunction;
(n)
An anti-suit injunction is necessary to address a threat to the court's
jurisdiction and to prevent the evasion of important public policy of Texas
including enforcing valid forum selection clauses, enforcing the parties'
agreement to arbitrate, and enforcing the parties' choice of law; and to
protect Plaintiff from vexatious or harassing litigation;
(o)
Failure to issue an anti-suit injunction will result in the inequitable
consequence that Plaintiffs will be deprived and denied the protection and
application of the clear and plain language of the contractual agreement
signed by Plaintiff and Defendant Net4site, LLC, acting through
Defendant Nagasundaram Padmanabhan, wherein the parties:
(I) Agreed to a specific dispute resolution system, which
Defendants failed to follow, governing the disputes at issue in this
cause;
(2) Agreed to an arbitration dispute resolution procedure which
Defendants failed to follow .and instead chose to file a lawsuit in
. PAGE 6
California without any prior notice to Plaintiffs;
(3) Agreed to a specific contractual term providing that the parties
recognized that a remedy at law for breach of the parties
contractual provisions relating to the solicitation of Plaintiff's
employees or business customers would not be adequate protection
for Plaintiff; and therefore, the parties agreed that Plaintiff shall
have the right to injunctive relief to enforce the provisions of the
parties contract, in addition to any othcr relief and remedies
available;
(4) Agreed to a non-solicitation clause wherein the Defendants
contracted that Defendants would not directly or indirectly solicit
or hirc any 'employees of Plaintiff or the employees Plaintiff's
customers or clients to whom Defendants were introduced during
the term of the agreement and for a period of one year after the
expiration or termination of the parties' agreement;
(5) Agreed to a non-compete clause which provided that
Defendants would not provide services to any customer or client of
Plaintiff whom Defendant provided services under or as a result of
the parties' agreement.
The arbitration procedure, adopted by the parties, specifically provided
that: "... any controversy or claim arising out of or relating to this
Agreement, or any alleged breach hercof, shall be settled at the request of
cithcr party by binding arbitration in Dallas, Texas...";
PAGE 7
- 10"---
25i
(q)
The arbitration procedure adopted by the parties specifically provided that:
"Notwithstanding thc foregoing, either party may request a court of
competent jurisdiction to grant provisional injunctive relief to such party
until an arbitrator can render an award on the matter in question and such
award can bc confirmed by a court having jurisdiction thereof";
(r)
A review of the pleadings filed by the Defendants, in their California
lawsuit, reveals that thc Defendants were not seeking provisional
injunctive relief until an arbitrator could render an award on the matter
which was the subject of the lawsuit Defendants filed against Plaintiff in
the California court. The parties specifically incorporated a provision in
thcir contract which provided that lawsuits brought by Plaintiff solely for
injunctive relief may be brought in any court of competent jurisdiction and
which further provided that: "All other lawsuits brought by either party
undcr this agreement shall only be brought in a court of competent
jurisdiction in thc State of Texas.";
(s)
Plaintiff has shown that a clear equity demands that this anti-suit
injunction be ordered;
(t)
Defendants' conduct will irreparably damage and/or continue to damage
Plaintiff unless enjoined by this Court; and further, unless Defendants are
enjoined front this conduct, Plaintiff will suffer irreparable harm for which
there is no adequate remedy at law, and the damages sustained by Plaintiff
will continue.
The Court therefore GRANTS Plaintiffs Application for Temporary Injunction. In order
•
PAGE 8
252
to preserve the status quo and to prevent further harm to Plaintiff, the Court enters the following
temporary injunction.
IT IS THEREFORE ORDERED as follows:
Pending final disposition of this matter in this Court, Defendants Net4Site, Chandra
Singla, and Nagasundaram Padmanabhan, and their agents, servants, employees, attorneys, and
all others acting in concert with them who receive actual notice of the order by personal service
or otherwise, are hereby RESTRAINED and ENJOINED from:
taking any action whatsoever, other than in this Court or in an arbitration
action in Dallas, Texas, to declare rights and obligations under, invalidate,
or interpret the Systech/Net4Site Agreement, or any provisions therein,
including but not limited to making any appearance, filing any paper,
participating in any proceedings, posting any bond, or taking any other
action in the California Lawsuit or in any other California state court
against Systech relating to the Systech/Net4Site Agreement, including
without limitation filing any request for temporary or permanent
injunctive relief to prevent the prosecution of the Dallas Lawsuit or the
AAA Arbitration by Systech.
It is further ORDERED that the bond previously posted by Plaintiff in the amount of
$6,000.00, shall serve as bond for the temporary injunction.
It is further ORDERED that the Clerk of this Court shall forthwith issue a Writ of
Injunction in conformity with the law and thc tcrms of this Order
It is further ORDERED that the temporary injunction shall remain in effect until the
conclusion of trial or final disposition of this matter in this Court, or as extended by a subsequent
PAGE 9
25
order of the Court.
It is further ORDERED that the trial of this case shall be sct on
2011, attilb o'clockL.m_
So ORDERED on this
/
day of July, 2011 at
10
3:51
odisiat00-
PAGE
441 kb&
ACS Systech Integrators - Net4site, LLC Staffing Serviceg Agreemitnt
INDEX
SECTIONS
25. Indemnification by Provider
26, insurance
27. Limitation of Liability
28. Violation of Laws and Regulatiens
29. Record Keeping and AUdit Rights
30. Termination for Insolvency
31. Termination for Failure of Perrot -Maned
32. Termination for Breach
1. Services
7
Term
3. Completion of Work by Provider
Irwoicing
5, Expenses
6. Relationship of the Parties
7- Employment Relationships
8. Employer Obligations of Provider
9. Communications with ACS Systech
Integrators Client
Confidential Information
1 L Data Security / Data Privacy
12. Non Solicitation
13. Non-Compete
14. Safety, Security, and Workplace Rules
15. ACS Systech Integrators Client Policies
16. Removal and Replacement
17. Reassignment of Provider Employees
18. Performance Wammties
19. Work Product Representations
1 0. Work Product Ownership and Rights
21. Work for Hire
22. OwnersNp, Use, and Return of Materials
1 3. Additional Provider Representations
24. Indemnification for Tort and Property Damage
.
33- Termination. without Cause
34_ Notice to Parties
35. Notice of Delivery or Performance Prnblems
36. Publicity
37. Assignment and Subcontracting
38- Waiver or Forbearance
39. Dispute Resolution
40. Arbitration
41. Headings
42. Severability
43. Injunctive Relief
44. Cumulative Remedies
45. Governing Law
46. Compliance with Laws
47. Entire Agreement
EXHIBITS
Exhibit 5 - Data Security
Exhibit 6 ACS Systech Integrators Travel Policy
Exhibit 1 -Services
Exhibit 2 - Declaration: Work Prod/Confidential
Exhibit 3 - Background Checks
Exhibit 4 - Remote User IT Security
1
Staffing Services Agreement
Contract Number #
EXHIBIT
3
.o
2
Rev A5
STAFFING, SE VICES AGREEMENT
This is a Staffing Services Agreement ("Agreemenr) by and between ACS Systech Integators, Inc, a
California corporation, ("ACS Systech Integrators") and Net4site, LLC. a CA corporation, ("Provider").
This Agreement is dated as of 10130108, ("Effecave Date"). ACS Systech fntegrators and the Provider
(each a "party" or collectively "the parties") agree as follows:
I. SERVICES
Provider agrees to perform the services described in this Agreement and to provide the employees of the
Provider to ACS Systech. Integrators and its affiliates to perform limited engagement or temporary
services for ACS Systech Integrators, its affiliates and/or the clients of ACS Systech Integrators, as ACS
Systech Integrators may request from thne to time, in accordance with this Agreement.
The' employees and/or contractors of Pnwider furnished to ACS Systech Integrators for temporary
assignment under this Agreement are sometimes referred to as "Provider Staff.' All work performed by
Provider in conneetion with this Agreement, including but not limited to the furnishing of Provider Staff
to ACS Systech Integrators, (collectively, the ,Servicea") shall be documented in indiVidual Task Orders
or Work Orders (each a "Task Order"). Each Task Order shall be in a form substantially similar to
Exhibit 7, attached; and shall at a minhnurn Contain (a) a reference this Agreement, which reference will
be deemed to ineorperate all the provisions of this Agreement; (b) a commencement date; term, and
ending date; (e) names of Provider employees to be assigned; and (d) for each Provider Staff the
assignment start and end dates, and (ii) applicable Hourly Rates.
Each Task Order shall be in writing and shall be signed by the authorized representatives of the Provider
and ACS Systech Integrators. If a Task Order is issued for Serviees to be performed under a goverarnerit
contract, appliCable flow-down provisions shaIl be in Writing and included. After being .signed by both
parties, each Task Order shall be deemed to aniend this Agreement and shall be incorporated by reference
in this Agreement.
Provider acknowledges that ACS Systech Integrators may request Services for its own benefit and/or for
the benefit of a client of ACS Systech Integrators, and that Servical may bc required to be performed at
locations other than ACS Systech Integrators locations (e.g, client facilities).
2. TERM - This Agreement is effective as of the Effective Date set forth aboVe and will continue for a
period of two (2) years after the Effective Data (the "Tenn"). This Agreement shall be renewed
automatically for succeeding [ems of 1 year unless either party gives notice of its intention not to renew.
to the other party at least 30 days prior to the expiration of any Tenn.
In the event of temination or expiration of this Agreement, at the discretion of ACS Systech Integrators
each Provider Staff shall continue the assignment under the terms of this Agreement through the period of
time referenced on the then current Task Order, or if none, through the duration of the assignment enddate, unless determined otherwise by ACS Systech Integrators. Provider shall not remove its Provider
Staff from assignment prior to completion of such assignitent.
Unless otherwise determined by ACS
Systech Integrators pursuant to the provisions of Section.% 18 30, 31, 32 or 33 below or pursuant to the
express provisions of any Task Onier, Provider Staff shall be required to complete the services required
under any Task Order for the full duration specified in the Work Order. Failure of Provider to complete
3. COMPLETION OF WORK ORDER BY PROVIDER
ttiffing Services Agreertient
Coturace Numbed!
2
Rev AS
any such Task Order through the full duration specified therein shall entitle ACS Systech Integrators torecover from Provider all costs and damages (including, without limitation, lost profits) arising out of
Provider's failure to compfete the Task Order through the full durafion specified therein.
4. INVOICING ACS Systech Integrators•agrees to pay Provider for Services rendered to and accepted
by ACS Systech Integrators in accordance with the provisions of this Agreement and the Task Orders
isaneet hereunder. Each Task Order shall specify the hourly billing rate (Hourly Rate) Provider may
invoice for the named Provider employee(s) assigned. The Hourly Rate may be inclusive of all Provider
costs related to the assignment of Provider Staff, including travel, if so provided in the individual Task
Orden Unless otherwise provided in an individual Task Order, hours worked per week by any Provider
employee may not exceed 40 hours without the express prior approval of each instance by the ACS
Systech Integrators manager, and any hours approved in excess of 40 shall be paid at the Hourly Rate,
ACS Systech Integrators is not obligated to pay any amounts to Provider unless expressly provided for in
thiS Agreement or applicable Task Orden Provider shall submit li-weekly invoices per ACS Systech
Integrators Client, as determinedly ACS Systech Integrators, with all fees, expenses, or related charges
with respect to all Task Orders. Failure to comply with this provision Will result in ACS Systeeh
Integrators rejecting the noncompliant invoice(s) until corrected. A delay in payment due to ProVider's
failure to comply with this. 'provision shall not be deemed a failure of ACS Systech Integrators to- pay
Provider. Provider shall Submit an invoice for each payment due in a final acceptable to ACS Systech
Integrators. Provider will invoice ACS Systech Integratcirs in arrears for all hourly rate charges.
Invoice terms will not alter or add to the terms of this Agreement. ProVider shall submit inVoices
using die ACS Syslooll Integrators vendor web portal unless otherwise agreed by ACS Systech
Integrators. To be eligible for payment, all Provider Staff hours must be supported by individual
employee time records, each signed by an authorized ACS Systech Integrators manager, submitted with
the invoice. ACS SyStech Integrators will pay each invbice, subject to approval by ACS Systech
ktegrators of the Services rendered and charges invoiced, net thirty (30) days after receipt of a complete
and accurate invoice. ACS Systech Integrators will notify Provider in writing within sixty (60) days after
receipt of an invoice on which a disputed amount appears describing the reason for disputing such item.
No late fee or interest charges shall apply. Billing disputes shall not be a cause of non-performance-under
this Agreement or applicable Task Ord=
ACS Systech Integrators shall have no obligation to pay Provider for any fees, expenses, or related
charges submitted for payment later than 90 days from the date the applicable project and/or services are
completed.
S. ACS SYSTECH INTEGRATORS/CLIENT EXPENSES Specific types of expenses that will be
reimbursed by ACS Systech Integrators for each Provider employee shall be as set forth in this
Agreement or in the individual Provider employees Task Order, subject to any stated limits. Provider
shall bear sole responsibility for all other expenses incurred by the Provider or the Provider employee in
connection with performance of Services. Expenses shall be separately listed in each invoice. The
Provider must support each request for reimbursement of expenses with itemized receipts.
From time to time, Provider Staff may be required to travel on behalf of ACS Systech Integators.
Subject to this paragraph and any limitations or exceptions set forth in the applicable Task Order,
Provider may inVoice far expenses related to Provider Staff travel if pm-approved by ACS Systech
Integrators. Provider Staff shall at all times adhere to ACS Systech Integrators and/or Clients then
existing travel and expense policies, which policims may be changed from time-to-time at the sole
discretion of ACS Systech Integrators. A summary of policies in effect as of the Effective Date of this
Agreement is attached hereto as Exhibit 6. All travel charges shall be passed-through to ACS Systech
Staffing Servie4s Agreement
ContaiaNumber#
-
3
Rey A5
Integrators at cost, net of any refunds, rebates or other compensation, and Provider shall not include any
mark-up to such actual costs. Expense reports for approved travel submitted to ACS Systech Integrators
must include itemized receipts for all expenses.
• RELATIONS1111? OE THE PARTIES This Agreement shall not constitute, create, give effect to,
or otherwise imply a joint venture, partnership, or business organization of any kind. ACS Systech
Integrators and the Provider are and intend to remain independent parties, and neither - party shall act as an
agent for or partner of the other for any purpose. Nothing in this Agreement shall grant to either party
any right to make any commitments of any kind for or on behalf of the other party without the prior
written consent of the other party. The Provider shall not be restricted from performing services for
others and shall not be bound to ACS Systech Integrators except as provided under this Agreement.
/ EMPLOYMENT RELATIONSHIPS The Provider is an independent contractor, and it is the
expressed intent of the parties that nothing in this Agreement shall establish an employer-employee
relationship between ACS Systech Integrators and the Provider or any employee of the Provider. The
Provider agrees that Provider employees shall not supervise or set hours of work for any ACS Systech
Integrators employee. The Provider shall have sole responsibility to recruit, hire, counsel, discipline,
review and terminate Provider Staff. The Provider and Provider employees and agents shall not be
eligible for any fringe benefits (including health insurance, paid vacation, sick leave, or other employment
benefits) that may be provided to employees of ACS Systech Integrators and shall not participate in any
ACS Systech Integrators qualified benefits plan.
S. EMPLOYER OBLIGATIONS OF PROVIDER The Provider shall be solely responsible for
payment of all wages or other compensation, taxes, insurance, and other expenses of doing business,
including all payments to the employees and agents of the Provider; withholding and timely remittance of
all taxes related to Provider employees; and payment of worker& compensation insurance, disability
benefit% and unemployment insurance for all Provider employees performing services under this
Agreement and individual Task Orders. Provider shall pay all benefits (if any) to which Provider
personnel are entitled under their benefit plans. ACS Systech Integrators shall have no financial
obligation with respect to any wages, taxes, benefits, and similar items described in this Section. Provider
agrees to indemnify, defend, and hold ACS Systech Integrators harmless from any claims, liability, or
expense arising out of the performance or nonperformance of the obligations of the Provider under this
Section.
g. COMMUNICATION Willi ACS SYSTECII INTEGRATORS CLIENT If Provider is
providing Services to art ACS Systech Integrators client under this Agreement, Provider agrees that all
communications with the client are the responsibility of ACS Systech Integratcrrs and Provider or
Provider Staff shall not communicate with the client regarding the Services except as expressly
authorized by ACS Systech Integrators.
IQ. CONFIDENTIAL INFORMATION Provider acknowledges that in the course of perforining
under this Agmement Provider may receive or have access to proprietary and/or confidential information
of ACS Systech Integrators andfer ACS Systech Integrators clients, supplies, or other parties with whom
ACS Systech Integrators conducts business (Collectively. "Confidential Information"). Confidential
Information may include, but is not limited to, trade secrets, pricing, methods, processes, financial data,
lists, statistics, customer lists, software, systems or equipment, programs, research, development, strategic
plans, operating data and other confidential business, customer or personnel informatinn or data, irr
written, oral, or other form. Such Confidential Information may contain disclosures of patentable
inventions with respect to which patents may not have been issued or for which patent applications may
not have been filed or material which is subject to applicable laws regarding secrecy of communications
or trade seerets or Similar proprietary rights. Provider covenants and agrees:
Staffing Service's &greet:atm
corarqa Nelinper#
4
Rev AS
(a) that all such Confidential Information SO acquired under this Agreement shall be and remain
the exclusive property of ACS Systech Integrators or its client, as the case may be;
(b) to liMit access to such Confidential Information to its authorized officers, directors; and
employees on a need-to-know basis accessary for performance under this Agreement, and to inform such
persons of the confidential nature of the Confidential Information;
(c) to permit access to such Confidential Information by any subcontractors or agent of the
Provider only with the prior written approval of ACS Systech Integrators and only if the subcontractor or
agent has executed a written agreement imposing obligations substantially similar to the provisions of This
Section 10;
(i) to keep, and have its officers, directors, employees, subcontractors and agents keep, such
Confidential Information cenfidential, using the same degree of care which it exercises with its own
Confidential Information of like importance, but in no event lesS than commercially reasonable means;
(e) not to copy or publish Or disclose_ such Confidential Information to others, except as may be
required by law or in connection with any legal proceeding Or to enforce the provisions of this
Agreement; provided that if any disclosure of Confidential Information is so required, provide prior
notice of such disclosure to ACS Systech Integrators and give ACS Systech Ietegrators a reasonable
opportunity to object to the disclosure of such Confidential Information;
(f) to return any copies of such Confidential Information in written, graphic or other tangible form
to ACS Systech Integrators at ACS Systech Integrators request;*and
(g) to use stich Confidential Information only for purposes of this Agreement and for other
purposes only upon such terms as may he agreed upon between the parties in writing.
It is expressly agreed that the term "Confidential Information" shall not include information which: (i) is
now, or hereafter becomes, through no unanthorized act of Poi Video generally known or available to !lid
public., (a) is rightfully known by Provider without an obligation of confidentiality at the time of
receiving such information from ACS Systech integrators; (iii) is hereafter rightfully furnished tti
Provider by a third party without an obligation of confidentiality; or (iv) is independently developed by
Provider without use of the other party's Confidential Information.
The Provider agrees .to inform each Provider employee of the employee's obligations under this
Agreement and obtain a written certification from each Provider employee that the etnployee onderstands
and accepts such obligations. Each Provider employee assigned under this Agreement shall complete and
sign a Declaration in the format attached to this Agreement as Exhibit 2, which signed Declaration shall
be submitted to ACS Systech Integrators prior to such Pmvider employee beginning assignment with
ACS Systech Integrators.
In the event Provider or an agent or subcontractor of Provider is requested or required by any
governmental authority, whether by oral question, interrogatories, requests for inknnation or documents,
subpoenas, civil investigation or similar process, to disclose any of the Confidential Information of ACS
Systech Integrators, Provider shalt provide ACS Systech Integrators with prompt notice of such requests
so that ACS Systech Integrators may seek an appropriate protective order or similar relief or, if
appropriate, waive compliance with the pmvisions of this Article. Provider shall use all commercially
reasonable efforts to obtain, or assist ACS Systech Integrators in obtaining, such a protective order or
relief.
Without limiting ACS Systech Integrators rights in respect of a breach of this Article, Provider shall: (i)
pmmptly notify ACS Systech Integrators of any unauthorized possession. 11Se or knowledge, or attempt
thereof, of ACS Systech Integrators Confidential Information by any person or entity that may become
Staffing Setviees Agrement
Cattirac1Mprzber
5
Rev A5
known to Provider; (ii) promptly furnish to ACS Systech Integrators full details of the unauthorized
possession, use or knowledge, or attempt thereof, and assist ACS Systech Integrators in investigating or
preventing the recurrence of any unauthorized possession, use or knowledge, or attempt thereof, of
Confidential Information; (iii) cooperate with ACS Systech Integrators in any litigation and investigation
against third parties deemed necessary by ACS Systech Integrators to protect its proprietary rights to the
extent such litigation or investigation Palates to the Services; and (iv) promptly use its best efforts to
prevent a recurrence of any such unauthorized possession, use or knowledge, or attempt thereof, of
Confidential Information.
11. DATA SECURITY/ DATA PRIVACY Provider shall comply with the provisions of Exhibit 5,
Data Security, attached to this Agreement. Provider shall comply with the Remote User Minimum IT
Security Standard (see Exhibit 4).
EU Data Privacy Directive. Some Task Orders under this Agreement may involve
A.
working with personal data that is subject to the EU Data Privacy Directive 95/461EC ("Directive").
Under the Directive, "Personal Date is defined as any information. 'elating to an identified or identifiable
natural person ("data subject"); an 'identifiable person" is one who can be identified, directly or
indirectly, in particular by reference to an identification number or to one or more factors specific to his
physical, physiological, mental, economic, cultural, or social identity. To the extent that ACS Systech
Integrators and/or ACS Systech Integrators client, as the case may be, is subject to the Directive, ACS
Systech Integrators requires Provider to perform the Services in a manner that is compliant with the
Directive and other applicable laws regarding privacy. Accordingly, to the extent a Task Order involves
Working with Personal Data that is covered by the Directive, Provider shall, notwithstanding anything to
the contrary contained in this Ageernent and in addition to (and not in substitution for) Provider's other
obligations:
only process Personal Data in accordance with the instructions of ACS Systech
(i)
Integrators. Provider shall proce.ss Personal Data solely for the purpose of performing the
Services and for no other purpose;
ensure that Providees applicable employees, agents and subcontractors are aware of the
(ii)
obligations of Provider regarding Personal Data under this Agreement;
(iii) take appropriate technical and organizational measures to secure the confidentiality of
Personal Data held by Provider, to prevent unauthorized or unlawful processing of such Personal
Data and to protect such Personal Data against accidental or unlawful destruction, accidental loss
or alteration, or unauthorized disclosure or access;
(iv) immediately notify ACS Systech Integrators of any breaches of Provider's security
affecting Personal Data;
•
ensum that Provider does not publish, disclose, divulge or transfer Personal Data to any
(v)
third party unless such action is permitted under the terms of this Agreement;
(vi) appoint a persbn responsibk for Organizing and monitoring the promssing of Personal
Data by Provider under this Agreement, who shall be responsible for keeping accurate records of
the processing of Personal Data;
(vii) upon request, provide promptly to ACS Systech Integrators such information regarding
Personal Data of ACS Systech httegrators processed by Provider to enable ACS Systech
Integrators to comply with its relevant policies and procedures, internal reporting obligations and
applicable laws.
(viii) provide all assistance reasonably required by ACS Systech Integrators Eta respond to any
access request from a data subject (as such term is dermed in Directive 95146/EC) or any enquiry
Corgracf Nuniber II
6
Rev AS
from a governmental authority in relation to Personal Data of ACS Systech Integrators processed
by Provider under this Agreement;
(ix) in the event Provider receives an access request from a data subject or an enquiry from a
governmental authority in itiation to Personal Data processed by Provider under this Ageement;
(a) immediately inform ACS Systech Integrators of such data subject access request and/or
enquiry from a governmental authority; (b) having received iostructions from ACS Systech
Integrators concerning the lawfulness of such data subject access request (which ACS Systech
• Integators will provide as soon as practicable), comply with any lawful request by a data subject
within dm time periods set forth in applicable privacy laws; (c) consult with ACS Systech
Integrators concerning the response to any governmental authority before making such response
and ensure that responses are made within the time period set forth in applicable privacy laws;
and
(x)
Upon instruction by ACS Systech Integrators, correct any Personal Data of ACS Systech
Integrators held by Provider and, at the instruction of ACS Systech Integrators, return to ACS
Systech Integrators or permanently delete any Personal Data of ACS Systech Integrators that
ACS Systeeh Integrators is under a legal obligation to remove from Provider.
Gramm-Leach-Bliley. Some Task Orders under this Agreement may involve working
B..
with personal information that is subject to the Gramin-Leach-Bliley Act ("GLB"). Some ACS Systech
Integrators clients are subject to GLB and therefore desire to ensure that ACS Systech Integrators and its
subcontractors comply with rules promulgated under GLB designed to safegoard "CustOmer
Information". Under GLB, "Customer Information" means nonpublic fmancial and health information
about a customer, whether in paper, electronic or other form. To the extent a Task Order involves
working with Customer Information that is subject to GLB, ACS Systech Integratirs requires Provider to
perform the Services in a manner that is compliant with GLB and other applicable laws regarding privacy.
Accordingly, Provider shall, notwithstanding anything to the contrary contained in this Agreement and in
addition to (and not in substitution for) Provider's other obligations:
not disclose or use any Customer Thformation except to the extent necessary to carry out
(i)
its obligations under this Agreement and for no Other purpose;
not disclose Customer Information to any third party, including, without limitation, its
(ii)
third party service providers without the prior consent of ACS Systech Integrators and an
agreement in writing from the third party 'to use or disclose such Customer Information only to
the eXtent necessary to carry out Provider obligations under this Agreement and for no other
purposes; and
(iii) maintain, and shall require all third parties approved under subsection (ii) to maintain,
appropriate administrative, technical, and procedural safeguards to: (i) ensure the security and
confidentiality of Customer Information, (ii) protect against any anticipated threats or hazards to
the security or integrity of Customer Infrnmation, and (iii) protect against unauthorized access to
or use of Customer Information. Provider shall provide ACS Systech Integrators with
information regarding such security measures upon the reasonable request of ACS and promptly
provide ACS Systech Integrators with information regarding any failure of such security
measures or any security breach related to Customer Information.
The obligations set forth in this Section 11, shall surVive termination and expiration of this Agreement.
12. NON-SOLICITATION
A. Provider agrees that it shall not, directly or indirectly, solicit or hire any employee of ACS
Systech Integrators or any employee of ACS Systech Integrators customers or clients to whom provider
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was introduced during the term of this Agreerrient and for a period of one year after the expiration or
termination thereof.
B. Provider agrees that it shall not, directly or indirectly, solicit any of ACS Systech Integrators
customers or clients who were introduced to Provider by ACS Systech Integrators under this agreement or
otherwise knowingly cause or attempt to cause any of ACS Systech Integrators customers or clients of
such customers who were introduced to Provider by ACS SAP Solutions under this agreement to direct
any business of such customer or client to Provider or to any company, firm or entity (whether or not
Provider has an interest in or affiliation with such company, firm or entity) other than ACS Systech
Integrators during the term of this Agreement and for a period of one year after the expiration or
termination thereof.
C. ACS Systech Integrators- agrees that it sbalt nor, directly or indirectly, solicit or hire any
employee or cOntractor of Provider during the term of this agreement and for a period of one year after
the termination of this agreement, unless specifically agreed otherwise in a Work Order:
13. NON-COMPETE Provider, on its own behaif and on behalf of each of Provider Staff, agrees that,
during the term of tlis Agreement (except only as necessary pursuant to Provider's performance under
this Agreement) and flor a period of one year thereafter, neither Provider nor any of Provider's Staff will
provide services of any kind whatsoever, directly or indirectly, to any customer or client of ACS Systech
Integrators for whom Provider and/or provider's Staff provided services under, or as a result of, this
Agreement, or to whom Provider or any of Provider's staff were inhoduced by ACS Systech Integrators.
14. SAFETY, SECURITY, AND Nvogicri,,ACE RULES Provider employees shall abide by all applicable
ACS Systech Integrators safety, security, and work-related policie& procedures, control& The provisions of this
Section shall not he construed to entitle Provider employms to any benefits or privileges provided by ACS Systech
Integrators to the employees of ACS Systech Integrators or described in ACS Systech Integrators policies,
procedures, or Welk rules,
Provider Staff may be assigned to work
at ACS Systech Integrators Client sites or he otherWise exposed to ACS Client Confidential Information.
Provider agrees to ensure that Provider and Provider Staff adhere to all ACS Systech Integrators Client
policies and procedures that ACS Systech Integrators deems applicable and to, if requested by ACS
Systech Integrators, execute appropriate documents conlirning this Obligation for specific ACS Systech
Integrators Clients. Where applicable the Client travel policy will supersede ACS Systech Integrators
travel policy.
15. ACS SYSTECIONTEGRATORS/CLIENT POLICIES
If any Provider employee assigned to perform Services is
unacceptable to ACS Systech Integrators for ,any reason, ACS Systech Integrators will notify the Provider
and the Provider shall promptly remove that Provider employee from performing Services.. A
determination by ACS Systech Integrators regarding acceptability or suitability of any Provider employee
to perform Services or to continue to perform Services shall be honored by the Provider in all cases. Any
Provider employee so removed at ACS Systech Integrators request may not be reassigned under another
Task Order without the express written approval of the applicable ACS Systech Integrators Program
Manager. If a Provider employee is removed from performing SerVices and if requested to do so by ACS
Systech Integrators, Provider will provide a replacement with equal or better qualifications and skills to
complete the remainder of the applicable assignment at no increase in cost to AC'S Systech Integrators.
16. REMOVAL AND REPLACEMENT
17. REASSIGNMENT OF PROVIDER EMPLOYEES The Provider agrees to use reasonable efforts
to ensure the continuity of Provider Staff assigned to perform Services. Provider agrees not to reassign or
otherwise remove any Provider Staff, except for nonperformance, without the prior written consent of
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ACS Systech Integrators. If any Provider Staff leaves the empley of the Provider, the Proirider sham.
notify ACS Systech Integrators hnmediately and, if requested by ACS Systeeh lategrators ; shall provide a
replacement with equal or better qualifications and skills to complete the remainder of the assignment at
no increase in cost to ACS Systech Integrators as soon as is reasonably posSible.
18. PERFORMANCE WARRANTIES Provider warrants that performance of Services by Provider
Staff will not violate any ageement or obligation between Provider and any third party; that Provider
Staff will haVe the requisite education, experience, training, and skills to perform the Services requested
for that Provider Staff; and that. Services will be performed in a professional and workmanlike manner.
Provider further warrants that it is familiar with and understands the requirements of all applicable federal
statutes and regulations regarding conflicts of interest as they pertain to the employment or engagement of
former federal offiters and employees and that the Services to be performed Will not be in violation of
those statutes or regulatioes.
19. WORK PRODUCT REPRESENTATIONS The Provider represents and warrants that the Work
Product delivered, to ACS Systech Integrators will he original and that the Provider.possesses all rights
necessary to effectuate the transfer of rights contemplated in this Agreement However, to the extent that
the Work Product includes material previously developed or copyrighted by the Provider or a third party
and not originated in connection with the Services performed by Provider employees, thq Provider shall
notify ACS Systech Integrators and. grant to ACS Systech Integrators (Or obtain for ACS Systech
Integrators) a perpetual, unrestricted, royalty-fite license to use, practice, Copy, create derivativeS of, and
create products embodying any ideas incorporated in that material. The licenses granted under this
Section shall include the right of ACS Systech Integrators to grant sublicense-8 far those materials. The
rights and obligations of the parties Under this Section shall survive temination of this Agreement.
20. WORK PRODUCT OWNERSHIP AND RIGHTS For purposes of this Agreement, the term
'Work Produce' means (collectively' and individually) technical inforination, programs for cOmputers or
other apparatus, designs, specification% drawings, records, documentation, report% materials ; cc-incepts,
plans, inventions, data, discoveries or adaptations; creative works, trade names or trade marks, and works
of authorship or other creative works (written, oral, or otherwise expressed) that are developed,
conceived, or acquired by the Provider, by Pmvider employee% or by authorited agents or representatives
of the Provhier in connection with Services, including derivative worka Ownership of Work Product and
all rights, title, and interest in Work Product shall vest solely in ACS Systech Integrators. Provider shall
give ACS Systech integrators and any person designated by ACS Systech Integrators such reasonable
assistance as may be required to perfect the rights described in this and related Sections dealing with
ownership of Work Product, ineludiMg, but not limited to, execution and delivery of instruments of
conveyance; as may be appropriate to give full and proper effect to such assignment in the United States
and any foreign country..
The Provider (including, if applicable, Provider employees, agents, or representatives) shall promptly
disclose and furnish to ACS Systech Integrators all Work Product arising in connection with the Services.
The Provider and Provider employees shall keep the Work Product in confidence, shall treat the Work
Product as Confidential Information of ACS Systech Integrators and shall use the Work Product only for
the purpoSes of this Agreement and for no other purpose, except with the prior written permission of ACS
Systech Integrators.
Each Provider Staff assigned under this Agreement shall complete and sign a Declaration in the format
attached to this Agreement as Exhibit 2.
21. WORK FOR HERE All Work Product shall be considered a "work for hire" under United States
copyright lawa To the extent any Work Product is deemed not to be a work for hire, the Provider hereby
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transfers (and shall be deemed to have assigned) all rights, title, and interest in and to the Work Product to
ACS Systech Integrators, including all copyright, trademark, trade secret, patent, or other proprietary
rights, and the right to sublicense or transfer all rights assigned under this Agreement to third parties in
perpetuity. The Provider shall assist and cooperate with ACS Systech Integrators to execute all
appropriate documents necessary or convenient to perfect the rights of ACS Systech Integrators in the
Work Product in order to ensure that ACS Systech Integrators receives the rights provided for in this
Section. The Provider shall enter into and maintain in its possession during the Term of this Agreement
written agreements (reasonably acceptable to ACS Systeeh Integrators) with each Provider employee Who
provides services under this Agreement to acquire those assigmnents, rights, and covenants. The Provider
shall furnish copies of those agreements to ACS Systech Integrator& upon request The rights and
obligations of the parties under this Section shall survive termination of this Agreement.
22. OWNERSHIP, USE, AND RETURN OF MATERIALS All information, records, documents,
file& data, and other items relating to the business of ACS Systech Integrators or its client& whether
prepared by Provider employees or otherwise coming into possession of the Provider in connection with
performance of Services or otherwise during the term of this Agreement (imclinling Confidential
Information) shall remain the exclusive property of ACS Systech Integrators (or clients of ACS Systech
Integrators) and shall not be removed from the premises of ACS Systech Integrators or its clients sites
under arty circumstances without the prior written consent of ACS Systech Integrators or its client, as the
case may be. All ACS Systech Integrators materials and all copies in possession of an individeal
Provider employee shall be promptly returned to ACS Systech Integrators upon terminatiOn of that
Provider employee's service& The rights and obligations of the parties under this Section shall survive
termination of this Agreement.
23. ADMIONAL PROVIDER REPRESENTATIONS
Provider represents that
it will not use or furnish to ACS Systech Integrators, whether as part of the Services,
(i)
Work Product or other deliverable, any Open Source Materials (as defined below) in such a way
that grants or purports to grant to Provider or any third party any rights or immunities with
respect to the Service& Work Product or deliverable, including, but not limited to, using any
Open Source Materials that require as a conclition of use, modification ancitor distribution of such
Open Source Materials that other software included as part of the Service& Work Product or
deliverable incorporated into, derived front or distributed with such Open Source Materials be (A)
disclosed or distributed in source code form, (13) be licensed for the purpose of making derivative
works, or (C) be redistributable at no charge. ``Open Source Materials" means all software or
other material that is distributed as "free software, "open source software or under .similar
licensing or distribution terms including, but not limited to, the GNU General Public License
(GPL), GNU Lesser General Pnblic License (LGPL), Mozilla Public License (MPL), BSD
licenges, the Netscape Public License, the Sun Cemmunity Source License (SCSL), the Sun
Indusny Standanis License (SISL) and the Apache License); and
all software, hardware or technical information ("Technology') provided by Provider
(ii)
under this Agreement andfor a Task Order will be free from restriction, regulation or special
procedure regarding export (A) from the country in which such technology is developed and (B)
from the United States to any destination, except countries under United States embargo. Upon
ACS Systech Integrators request, Provider shall provide ACS Systech Integrators with ECCN
numbers for Provider delivered hardware, software, and technical data of US origin.
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(iil) all Pmvider persOnnel with exposare to ACS Systech Integrators Technology shall have
the legal right to such exposure; Provider shall provide to ACS Systech Integrators any and all
information requested by ACS Systech integrators in order to confirm such right.
(iv) neither Pmvider nor persons nor subcontractors performing services hereunder shall
appear on any of the following lists, administered by the United States Government 1. Bureau of
Industry and Security, U S Department of Commerce, Denied Person& List 2. Bureau of Industry
and Security, US. Department of Commerce, Unverified List; 3. Defense Trade Controls - List of
Debarred Parties; and 4. Specially Designated Nationals, Terrorists, Narcotics Traffickers;
Blocked Persons and Vessels List; 5_ Bureau of Industry and Security, Department of Commerce,
The Entity List. If Provider or any person providing services hereunder appears on such a list,
ACS Systeeh Integrators may terminate this contract or work order without any further
obligations to Provider whatsoever.
the Provider acknowledges that as a Provider and vendor to AC'S Systech Integrators, the
(v)
Provider may, directly or indireetly, receive or access software and/or technical data
("Technofogr) which may he classified according to the U.S. Comnierce Control List as eligible
for export under license exception "Technology and SOftware Linder Restrictioe (TSR). The
Provider acknowledgeS tharTSR" has beert made available by the U.S. Dept. of Commerce to all
U.S. exporters, but is subject to certain restrictions.
Provider agrees to comply with U.S. export Iaws and regulations and shall not export or re-export thiS
software and/or technical data (or any direct product of this software or technical data) without proper
U.S. government authorization to destination countries not eligible for exports under license exception
TSR or to persons who are nationals of those countries.
According to current U.S. export regulations, the following countries and/or nationals from these
countries are not eligible to receive exports undcr license exception TSR but the Supplier understands
that, as with other U.S. laws and regulations, this list is subjcct to change:
Albania, Armenia, Azerbaijan,, Belarus, Cambodia, China (People's Republic — PRC), Georgia,
Iraq, Kazakhstan, Kyrgyzstan, Laos, Macau, Moldova, Mongolia, Russia, Tajikistan,
Thrkrnenistan, Ukraine, Uzbekistan, Vietnam„Cnba, Iran, North Korea ; Libya, Sudan, Syria
24. INDEMNIFICATION FOR PERSONAL INJURY AND PROPERTY DAMAGE CLAIMS
Provider shall defend, indemnify, and hold harmless ACS Systech Integrators (and its successors,
officers, directors, and employees) from any and all liabilities, claims, and expenses of whatever kind and
nature forlinjury to or death of any person or persons and for loss of or damage to any real or tangible
personal property occurring in coanection with or in any way incident to or arising under this Agreement.,
resulting in whole or in part from the acts or omissions of the Provider. ACS Systech Integrators shall
promptly notify Provider, in writing, of any claim and shall reasonably cooperate with Provider in the
defense and settlement of the claim. The rights and obligations of the parties under this Section shall
survive termination of this Agreement.
25. INDEMNIFICATION BY PROVIDER Provider shall indemnify, defend and hold harmless
ACS Systech Integrators, its affiliates, and respective officers, directors, employees, agents, successors
and assigns, from and against all actions, claims, demands, costs, liabilities, expenses, losses and damages
(including reasonable attorney's fees) to the extent arising fiom any of the following:
any claims arising out of or related to Provider's failure to comply with any and all
a)
insurance requirements set forth in this Agreement;
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b)
any claims for workers' compensatiOn benefits relating to Provider Staff and any ogle."'
claims made by Provider Staff that arise from or relate to their employment with Provider, including
claims based on joint employer liability or similar theOry, except where such claims result from ACS
Systech Integrators gross negligence, willful misconduct or unlawful acts, ACS Systech Integrators's
failure to draft its benefit plans or programs so as to effectively exclude Provider Staff from participation
or Where the claim arises out of a violation by ACS Systech Inteators of any employment law or
leOslation (e.g. Title VII of the Civil Rights Act, the Arneritans with Disabilities Act, and the like);
c)
Provider's breach of its obligations with respect to ACS Systech Integrators Confidential
Information;
any claims of Provider's employees, contractors or subcontractors ; except to the extent
d)
that such claims result from the gross negligence, willful misconduct or unlawful acts of ACS Systech
Integrators;
e)
the untruthfulness or inaccuracy of any covenant, representation or warranty made by
Provider in this Agreement;
any amounts, including taxes, interest and penalties, assessed against ACS Systech
Integrators which are obligations of Provider under this Agreement;
g)
any ciaints for penalties, interest and other charges imposed by a taxing authority arising
out or resulting fiom Provider issuing an ineorrect invoice or other information provided tto ACS Systech
Integrators in writinx
any actions or omissions of Provider, its employees, agentS arid subcontractors, hi their
11)
performance to the requirements and standards of the code of ethics referenced herein; and
any claim that the services or Work Product furnished by the PrdVider or Provider
i)
employees under this Agreement Constitutes an infringement or misappropriation of any confidential
information, trade secret, patent, copyright, trademark, trade name, or other legal intellettual property
right of any third party.
26. INSURANCE Throughout the Tenn, Provider shall, at its sole cost and expense, prOcure
and maintain in fOrce the insurance coverage described below.
Comniercial General Liability Insurance, including Premises/Operations, Blanket
(a)
Contractual Liability, Personal Injury and Advertising Injury coverage, with a minimum combined single
limit of $1,000,000 per occurrence;
Worker's Compensation Insurance in statutory arnmmts including employers liability
(b)
insurance with a minimum occurrence limit of $1,000,000 or any alternative plan of coverage as
permitted or required by applicable law; Provider shall provide an "Alternative Employer's Endorsemene'
naming ACS Systech Integrators as the alternative employer;
Errors and Omissions (Professional Liability) Insurance covering the liability for
(c)
financial loss duc to negligent error or omission of Provider as described in this Ageement with a
rnininulm amount of$5,000,000;
Automotive Liability Insurance covering all owned and non-owned vehicles with a
(d)
minimum combined single limit of $1,000,000 per occurrence for bodily injury and property damage
Clinic and Fidelity Insurance for loss arising out of or in connection with fraudulent or
(e)
dishonest acts committed by the employees of Provider, including computer fraud, acting alone or in
collusion with others, in a minimum amount of $1,000,000 per loss;
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Umbrella Liability increasing the limits of the coverages in (a), (b) (employers liability
(1).
portion only), and (d) above in the in the amount of $5.000,000; and
The commercial general liability insurance and automotive liability policies shall name
(g)
ACS Systech Integrators and its affiliates and their officer& directors, and employees as "additional
insureds," and such policies shall be primary and noncontributory with any insurance maintained by ACS
All policies Provider is required to carry shall: (i) be primary as to Provider's negligence and noncontributing with respect to any other insurance or self-insurance ACS Systech hnegrators may maintain;
(ii) be provided by insurance carriers with a Best's minimum rating of "A." and minimum Best's financial
performance rating of '7"; (iii) require the insurer to notify ACS Systech Integrators in writing at k.ast
thirty (30) day§ in advance of cancellation or material modification; and (iv) as to the policies described
in above paragraphs (a), (b) and (d) only, include a waiver of ali rights of subrogation against ACS
Systech Integrators and affiliate& Provider shall cause its insurers Mt Issild to ACS SYstech Integrators
certificates of insurance evidencing that the coVerage and policy endorsements required by OS Section
are in effect. The limits of Provider's insurance shall not limit Provider's liability under this Agreement.
27. L/MITATION OF LIABILITY EXCEPT FOR INDEMNIFICATION OBLIGATIONS OR
A BREACH OF CONFIDENTIALITY OBLIGATIONS AS SET FORTH IN THIS
AGREEMENT,. NEITHER PARTY SHALL BE MAPLE FOR INDIRECT; INCIDENTAL;
CONsplugmlAt, EXEMPLARY OR PUNTIIVE DAMAGES, REGARDLESS QF TEE
FORM OF ACTION, WHETHER IN CDNTgAcT; TORT cm. oxiiEKivig, AND EVEN r0
tiAirryirAs BEES ADVISED OF THE POSSIBILITY ijr SItil DAMAGES.
28. VIOLATION OF LAWS AND REGULATIONS The Provider acknowledges that certain local.
state, and federal laws and regulations apply to the Provider BS an independent contractor. In addition, the
Provider aeknoWledges that federal or state procurement and conflict of interest laWs and regulatiOns may
apply to the Provider. The Provider agrees to comply with all applicable federal, state, and total laws.
Further, the Provider agrees to defend, indemnify, and hold ACS Systech Integratoit (including the
parent, affiliates, subsidiaries, agents, directors, officers, and employees of ACS Systech Integratori)
harmless against all claims, damages, losses, causes of action., liabilities, and expenses of any kind or
natare, including reasonable attorney fee& that arise out of or relate to the failure of Provider to comply
with all applicable kcal, stale, and federal laws and regulations irk the performance of the Provider'S
obligations under this Agreement.
29. RECORD KEEPING AND AUDFP RIGHTS
Provider shall maintain complete and accurate records and supporting documentation of
(a)
and for all financial and non-fmancial transactions under this Agreement under this Agreement, sufficient
to permit a complete audit of such financial and non-financial transaction& Such records shall include
data and doeumentation of third party charges invoiced to Provider and accurate and complete personnel
records of all Provider Staff. As a minimum, the following records are to be kept by Provider, and, to the
extent permitted by law, shall be available for evaluation by ACS Systech Integrators for audit: ACS
Systech Integrators business group name and Location, Pmvidet Staff name and social security number,
contract number or accounting code, skill type, date, number and S amourit, Mark-up with or without
benefits, assignment state, register rate (straight, overtime), Bill Rate (straight, overtime), and background
check results and drug screening results for each Provider Staff.
With at least five (5) clays written notice to Provider. ACS Systeeh Integrators shall have
(b)
access to such records for audit purposes during normal business hours during the Term and thereafter for
the period during which Provider is required to maintain such records. Provider shall, at no additional
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cost to ACS Systech Integrators, provide ACS Systech Integrators access to all data and records relating
to the Servites, for the purpose of performing audits and inspections of Provider and its business, to
verify the integrity of ACS Systech Integrators data, to examine the systems that process, store, support
and transmit that data, and to examine Provider's charges and performance of the Services under this
Agreement. To reduce the effort involved for both Provider and ACS Systech Integrators, an automated
audit system may be utilized by ACS Systech Integrators.
(c)
If in any audit ACS Systech Integrators determines that operational problems (including
failure to comply with background check or drug screening requirements) or financial issues exist.
Provider shall reimburse ACS Systech Integrators for any costs ineuned in such audit that exceed $2,500.
Provider shall respond promptly to any conchtsions and recommendations reported as part of an audit and
shall establish a schedule for implementation of such recommendation& If an ACS Systech Integratorsinitiated audit reveals that Provider has overcharged for Services during the audited period, Provider shall
reirnburse ACS Systech Integrators for the cost of the audit in excess of $2,500 in addition to the amount
of any overcharge& Provider shall pay such amount to ACS Systech Integrators within ten (10) days
following ACS Systech Integrators's written request.
Provider agtees that ACS Systech Integrators and its agents or, when purchase
(d)
order/releases relating to Covenunent contracts are involved, the United States of Ameriea or any
department thereof shall have access to and the right to examine any directly pertinent book&documents,
paper& and records of Provider involving transaction& related to this Agreement until the expiration of
three years after final payment hereunder at all reasonable times upon reasonable prior request.
TERMINATION FOR INSOLVENCY If either party becomes or is declared insolvent or
bankrupr, is the subject of any proceedings related to its liquidation, insolvency, or for the appointment of
a receiver or similar officer for it; makes an assignment for the benefit of all or substantially all of its
creditors; or enters into an agreement for the composition, extension, or readjustment of all or
substantially all of its obligations, then the other party may, by giving written notice, terminate this
Agreement as of a date specified in the notice of tetmination.
31. TERMINATION FOR FAILURE OF PERFORMANCE If the Provider fails to perform the
servites required under this Agreement and does not cure the failure within ten (10) calendar days (or
other reasonable period stated in the notice) after receipt of written notice from ACS Systech Integrators
of the failure to perform, ACS Systech Integrators may terminate this Agreement for default If an
employee of the Provider fails to perform services required under this Agreement, ACS Systech
Integrators may immediately terminate the assignment.
If either party materially breaches any of the terms and
conditions set forth in this Agreement and fails to cure the failure within twenty (20) calendar days (or
other reasonable period stated in the notice) after receipt of notice from the other party of the breach,. the
notifying party may, by written notice, terminate this Agreement for breacb. ACS Systech Integrators
may also immediately suspend performance under this Agreement, including the obligation to pay fees
for suspended performance, upon notice to the Provider of a violation of the provisions of Section 10
(Confidential Information) of this Agreement.
32. TERMINATION FOR BREACH
33. TERMINATION FOR CONVENIENCE Notwithstanding any other provision or requirement of
this Agreement, ACS Systech Integratom may terminate this Agreement or any Task Ordet. issued
hereunder at any time for convenience without cause and without cost by giving written notice to the
Providen In such an event, ACS Systech Integrators shall pay Provider for work properly performed and
expenses properly incurred through the date of termination.
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34. NOTICE TO PARTIES Unless otherwise specified in this Agreement, all nodees, requests, or
consents tequired under this Agreernem to he given in writing shall be transmitted by facsimile, hand
delivered, or mailed (first class postage prepaid) to the persons indicated below. Each party will notify the
other, in writing, of any change in the designated addressee or related information.
To ACS Systech Integrators:
To Net4site, LLC:
ACS Systcch Integrators .
Attn: Heidi Renton
7701 Las Colinas Ridge. Suite 500
Irving, TX 75063 .
Telephone:
Facsimile: 972-373-5263
Net4Site, LLC.
Attn: CK Singla
5645 Silver Creek Valley Road, Suite 200
San lose, CA - 95138
Telephone: 40a-835-8545
Facsimile:
With a copy to:
Affiliated Computer Services, Inc.
Atm.: General Counsel
2828 North Haskell
Dallas, IX 75204
If the Provider encounters or
anticipates difficulty in meeting any deadlines, providing any Provider services oi deliverables (including
the performance of any of the services under any individual Task Order by a Provider employee), or
meeting any other performance obligations under this Agreement or in complying with the terms or
conditions of this Agreement, or has knewledge that any actual or potential situation or event will or is
reasenably likely to cause interference with or delay the timely performance of the Agreement, the
Provider shall notify ACS Systech Integrators immediately (and confirm the notification in wilting),
identifying the problem(s) and the corrective action(s) that will be taken. The reeeipt and acceptance of
the notification by ACS Systech Integtators shall not constitute a waiver by ACS Systech Integrators of
any time limits or other obligations of the Provider under this Agreement and shall not operate to waive
any rights or rernedies provided by law or the terms of this Agreement.
35. NOTICE OF DELIVERY OR PERFORMANCE PROBLEMS
All media releases, public announcements, and other disclose by Provider
36. PUBLICITY
relating to this Agreement or the subject matter hereof, including promotional or Marketing materials
d!all be subject to approval hy ACS Systech Integrators prior to release. No license or right, either
directly or by implication, is granted to Provider to use ACS Systech Integrators name or any of ACS
Systech Integrators trade names, trademarks, service marks, slogans, logos, or designs for any advertising,
promotional or other purpose without the prior written permission of ACS Systech Integrators.
37. ASSIGNMENT AND SUBCONTRACTING This Agreement shall he binding on the patties and
each party's successors and assigns. Nevertheless. Provider may not assign or otherwise transfer this
Agreement or any rights, duties, Or obligations under this Agreement without the prior written consent of
ACS Systech Integrators, and any attempt to make an assignment withoutl prior written consent shall be
void. ACS Systech Integrators may assign or transfer this Agreement or any rights, duties, and
obligations under this Agreement to a corporate parent, subsidiary, or affdiate of ACS Systech Integrators
or to a purchaser of all or substantially all of the aSsets of ACS Systech Integrators. The Provider shall
not subcontract any portion of Services without prior written approval of ACS Systech Integrators.
Any delay or failure of either party to insist upon strict.
performance of any obligation under this Agreement or to exercise any right or remedy provided under
this Agreement shall not be a waiver of that party's right to demand strict compliance, irrespective of the
38. WAIVER OR FORBEARANCE
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number or ditration of any delay(s) or faihrre(s). No tern or condition imposed on either party under this
Agreement shalt be waived and no breach by either party shall be excused unless that waiver or excuse of
a breach has been put in writing and signed by both parties. No waiver in any instance of any right or
remedy shall constitute waiver of any other right or remedy under this Agreement No consent to or
forbearance of any breach or substandard perfermance of any obligation under this Agreement shall
constitute consent to modification or reductiort of the other obligations or forbearance of any other breach.
39. DISPUTE RESOLUTION It is the intent of the parties that any disputes arising under this
Agreement be resolved expeditiously, amicably, and at the IeVel within each party's organization that is
most knowledgeable about the relevant issues. The parties understand and agree that the procedurs
outlined in this Sectien are aot intended to supplant the mutine handling of inquiries and complaints
through informal contact of the parties. Accordingly, fer purposes of the procedures set forth in this
Section, a "dispute is a disagreement that the parties have been unable to resolve by the normal and
routine channels ordinarily u.sed for resolving problems. Pending the final disposition of a dispute other
than a dispute arising out of the termination of this Agreement by ACS Systech Integrators, the parties
shall, at all thnes, proceed diligently with the perfortnante of this Agreement Before either party seeks
any remedies available at law, the parties shall sequentially folloty the procedureS set forth below:
(a) The complaining party shall notify the other party in writing of the reasons for the dispute, and
the parties shall work together to resolve the matter as expeditiously as possible. A formal
written response will not be required, but the responding party may put its position in writing in
order to clarify the issues or suggest possible solutions.
(b) If the dispute remains unresolved thirty (30) days. after the delivery of the complaining party's
written notice, a senior representative of ACS Systech Integrators and of the Provider will meet
or participate in a telephone conference call within ten (10) business days of a request for the
meeting or conference call by either party to resolve the dispute_
(c) If the parties are unable to reach a resolution of the dispute after following these procedure% or
- if either party fails to participate when requested, then the parties may pursue any remedies
• available under this Agreement.
40. ARBITRAT1ON Except as otherwise provided in this Section. any controversy or claim arising
out of or relating to this Agttement, or any alleged breach hereof, shall be settled at the request of either
Party by binding arbitration in Dalla% Texas before and in accordance with the then existing Conunercial
Arbitration Rules of the American Arbitration Association (the "Rules"). In any dispure in which the
amount in controversy is less than Two Hundred Fifty Thousand Dollars ($250.000), there will be one (I)
arbitrator agreed to by tha Parties or, if the Parties are unable to agree within thirty (30) days after demand
for arbitration is made, selected in accordance with the Rules. In all disputes over $250,000, there will be
three (3) arbitrator% one (I) of whom will be selected by ACS Systech Integrators within twenty (20)
days after- demand for arbitration is made, one (1) of whom will be selected by Provider within twenty
(20) days after demand for arbitration is made, and one (1) of whom will be selected by the twu Partyappointed arbitrators within ten (10) days after their selection If one or more arbitrator(s) is not selected
within the time period stated in the preceding sentence, such arbitrator(s) will be selected pursuant to the
Rules. Each Party shall pay its own attorneys' fees and one-half (1/2) of the other arbitration cents. The
arbitrators will apply the law set forth herein to govern this Agreement and will have the power to award
any remedy available at law or in equity; provided, however, that the arbitrators will have no power to
amend this Agreement Any award rendered pursuant to such arbitration shall be final and binding on the
Parties, and judgment on such award may be entered in any court having jnrisdiction thereof. The
prevailing party may recover its attorneys' fees incurred in any such enforcement action.
Notwithstanding the foregoing, either party may request a court of competent jurisdiction to grant
6taffing Services Agreement
cohfractiVumben#
16
Rev A5
provisional injunctive relief to such party until an arbitrator cart render an award on the Matter in question
and such award can ba conftrmed by a court having jurisdiction thereof.
41. HEADINGS The headings used in this Agreement are merely for reference and have no
independent legal meaning and impose no obligations or conditions on the patties_
42. SEVERABILITY If all or part of any term or condition of this Agreement, or the applicadon of
any term or condition of this Agreement, is determined by any court of competent jurisdiction to be
invalid or unenforceable to any extent, the remainder of the terms and conditions of this Agreement (other
than those portions determined to be invalid or unenforceable) shall not be affected, and the remaining
terms and conditions (or portions of terms or conditions) shall be valid and enforceable to the fullest
extent pennitted by law. If a judicial determination prevents the accomplishment of the purpose of this
Agreement, the invalid term or condition (or portions of terms or conditions) shall be restated to conform
with applicable law and to reflect as nearly as poSsible the origAml intention of the parties.
43. INJUNCTIVE RELIEF The parties recognize that a remedy at law for a breach of the provisiont
of this Agreement relating to proprietary and confidential infomtation; the unauthorized use of any
trademark, copyright, or other intellectual property of ACS Systach Integrators; or solicitation of ACS
Systech Integrators employees or business customers will not be adequate for protection of ACS Systech
Integrators, and accordingly ACS Systech Integrators shall have the right to injunctive relief to enforce
the provisions of this Agreement, in addition to any other relief and remedies available.
44- CUMULATIVE REMEDIES All remedies available to either party for breach of this Agreement
by the other party are and shall bc deemed cumulative and may be exercised separately or concurrently.
The exercise of a remedy shall not be art election of that remedy to the exclusion of other remedies
available at law or in equity.
45. GOVERNING LAW This Agreement shall be govemed by, interpreted, construed, and enforced
in accordance with the laws of the State of Texas, Without reference to the principles of conflict of lavis.
Lawsuits brought by ACS Systech Integrators solely for injunctive relief may be brought in any court of
competent jurisdiction. All other lawsuits brought by either party under this Agreement shall only he
brought in a court of competent jurisdiction in the State of Texas,
46.. COMPLIANCE WITH LAWS Provider shall comply with all federal, national, state, provincial
and local laws, regulations and orders including minimum wage and overtime laws, Fair Labor Standards
Act, Social Security Act, Equal Employment Opportuaity laws, the American with Disabilities Act, 1-9
immigration laws, the Family Medical Leave Act, the Occupational Safety and Health Act, and the Health
Insurance Portability and Accountability Act of 1996, and the European Directive 951461EC and similar
country legislation on privacy. Provider shall provide all documents required by ACS Systech Integrators
to verify compliance.
47. ENTIRE AGREEMENT The contents of this Agreement including each individual Task Ckder
and all exhibits, schedules, or other attachments to this Agreement that arc referred to and incorporated in
this Agreement by reference constitute the entire understanding and agreement between the Parties and
stipersede any prior agreements, written or oral, that are not specifically referenced and incorporated in
this Agreement. The tams and conditions of this Agreement shall not be amended except by written
agreement signed by both parties.
IN WITNESS WHEREOF. the undersigned authorized representative of ACS Systech Integrators and
of the Provider have executed this Agreement.
Staffing Service 5 Agreement
-
ContractNinither
Rev A5
&CS Syaedi.intetivAr$
XeL4Sit&,
By:
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By:
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Date:
18
flit r)
V.dir;
EllEIBIT I
SERVICES
Submission of Onalifted Candidates — Provider will recruit, interView screen, select and hire
I.
applicant% who, in Provider's judgment, are best qualified to perform the type of work described in ACS
Systech Integrators-generated requisi6ons. Provider agrees to submit qualified candidates ro ACS Systech
Integrators. Pmvider will not, for any reason, withhold qualified candidates front being submitted to ACS
2.
Approval of Provider Staff — Provider will provide, at ACS Systech Integrators request. Provider
Staff to work at ACS Systech httegrators or ACS Systech Integrators client facilities under ACS Systech
Integrators or Client's direction, control, and supervision, ACS Systech Integrators is not obligated to
accept any candidates presented by Provider in response to ACS Systech Imegrators requisitions. Within
the limits set by applicable laws, ACS Systech Integrators reserves the right to set the hours and days of
work Provider is obligated to supply Provider Staff to meet this schedule with continuity of skills and
availability. Provider Staff are subject to the approval of ACS Systech Integrators.
Skill Validation — Provider must validate any Provider Staff positions with critical skill
3.
requirements that can be tested by ntili'mtion of industry standard tests. ACS Systech Integrators will
define in the personnel requisition any unique testing requirements.
Vendor Processing — Provider agrees to adopt ACS Systech Integrators current methodology for
4.
receiving Task Orders and other requisitions seeking Provider Staff and for submitting invoices for
Services provided, which methodologies may be changed from time to time at ACS Systech IntegratorS
discretion. For automated methodologies, ACS SYstech integrators will furnish Provider with portal
access, system identification, passwon* and other information as needed. Provider will be responsible
for maintaining ennerst Provider information and for timely reporting of any processing difficuldes to
appropriate ACS Systech Integrators personnel.
Termination of Task Order or Assignment - ACS Systech Integrators hi its sole discretion may
terminate a Task Order or any Provider Staff assignment under a Task Order at any time for any reason
that is not unlawful by giving notice to Provider. To tenninate a Task Order or assignment, ACS Systech
Integrators will contact Provider who will inform the affected Provider Staff of the termination.
5.
On-Roarding — Provider will be responsible for the on-boarding of Provider Staff. Provider's
6.
resPonsibilities will include,. but not be limited to, the following:
a) Verify if candidate is a former ACS Systech httegrators employee or Provider employee
who previously worked at ACS Systecit Integrators and confirm eligibility to work at
ACS Systech Integrators.
b) Provider Staff will notify Provider of any absence,
c) Unless otherwise agreed on a local basis, introduction of Provider Staff to ACS Systech
Integrators Requesting Managers and other appropriate ACS Systech Integrators
personnel,
d) Unless otherwise agreed on a local basis, work with ACS Systech Integrators to securo.
access badge to site buildings and any restricted areas where special access may be.
required,
e) To safeguard confidential informa6on of ACS Systech Integrators and its clients and to
secure assignment of property rights to ACS Systeeh Integrators for any work product of
Provider Staff while on assignment at ACS Systech Integrators. ensure Provider Staff
reads policy related to confidential information and executes the form set forth in Exhibit
Staffing Servims Agreement
Contract Number #
19
Rev AS
2, "Declaration of Provider Employee regarding Work Product Ownership and
Confidentiality".
Ensure that Provider Staff is not subject to an obligation of any kind to any party,
whether by contract or otherwise, that would prevent or restrict Provider Staff s ability to
perform work for or on behalf of ACS Systech Integators, and
Ensure that all Provider Staff comply with any code of ethicS, standards of conduct, or
similar documents that may bc provided by ACS Systech Integrators or an ACS Systech
Integrators client to Provider.
Off-Boarding — Provider will be responsible for the off-boardhtg of Provider Staff. Provider's
7.
responsibilities will include, but not be limited to, the following:
. a) Terminate assignment of Provider Staff at designated time a S directed by ACS Systech
Integrators, whether for cause, completion of assignment or otherwise,
b) Unless otherwise agreed on a local basis, verify that ACS Systech Integra(ors property,
including without limitation, access badges, keys, equipment, tools, notebooks, manuals,
and Work Product, has been turned over to the responsible ACS Systech Integrators
manager, and
e) Ensure Provider Staff has completed and signed their final time report for the period
Submission Procedures - Provider will abide by the procedures established by ACS Systech
Integrators for submitting candidates for Provider Staff.
8.
Timekeeping - All Provider Staff will utilize timekeeping procedures acceptable tO ACS Systech
Integrators, including use of automated timekeeping methodologies made available by ACS Systech
Integrators if requested. Provider is responsible for the accuracy and completeness of time records for all
Provider Staff, and for ensuring that time records arc approved by authorized ACS Systech Integrators
management prior to submitting for paymeno All hours in excess of 40 per week for any Provider
employee must be expressly pre-approved by ACS Systech Integrators management in each instance, with
such approval confirmed by separate notation on the applicable time record submitted to ACS Systeeh
Integrators.
9.
Legal Right to Work - To the extent not prohibited by law, Provider will ensure Provider Staff
10.
have the legal right to work in the United States or other country where the work is being performed.
When requested to da so by ACS Systech Integrators, Provider will certify that the I-9s have been
completed in accordance with INS regulations.
Background Checks — Provider wilt conduct a background check on each Provider Staff
II.
candidate selected by ACS Systech Integrators for assignment. Such background checks (as more
particully defmed in Exhibit 3, Background Check) will be performed in accordance with current
industry standards, but in any event will include a verification of employment history, educational
credentials, and a felony criminal conviction record check. In the event an ACS Systech Integrators
Client for which Services are to be performed has other requirements for background cheeks, Provider
shall at ACS Systech Integrators trquest comply with such requirements. Provider shall ensure that no
Provider employee found to have a felony criminal corwiction is assigned to ACS Systech Integrators
without the express written consent of ACS Systech Integrators Human gesources. Upon request by ACS
Systech Integrators, Provider will provide information to ACS Systech Integrators mgarding Provider's
procedure for performing background cheeks. Provider must provide to ACS Systech Integrators a signed
statement affirming that a candidate has successfiffly completed the background cheek prior to such
candidate being placed on assignment at ACS Systech Integrators. Provider will receive and
communicate to ACS Systech Integrators verbal confirmation of any adverse information within two
business days and a written report within five business days.
Contract Number #
20
Rev AS
12. Drua Screening - ACS Systech Integrators performs work at client sites and cornpany lecations
where drug screenings aro required. If requested by ACS Systech Integrators, Provider will perform a 10pane l or 5-panel drug screen testing on its Provider Staff assigned to ACS SYstech Integrators, the cost of
which may be passed through to ACS Systech Integrators without mark-up; provided that if the results of
the drug test are positive, then Provider will bear the cost of the test The performance of a 10-panel or 5panel drug screen test will be at ACS Systech Integators discretion. If a drug screen is reqUired, Provider
must (i) provide to ACS Sys tech Intwators a signed stRrement affirming that a candidate has undergone
drug testing utilizing the required drug screen. prior to being placed on assignment at ACS Systech
Integrators, and (ii) notify ASC within 48 hours of the test whether results are positive or negative. No
Provider employee testing positive for illegal drugs will be assigned to ACS Systeeh Integrators without
the express written consent of ACS Systech Integrators Human Resources.
13. Forms W-4 and 1-9 -Provider will certify that Provider Staff placed on assignment With ACS
Systech Integrators will execute a Form W-4 and Form 1-9.
14. Social Security Numbers - Provider will ensure that all Provider Staff placed in the United States
have obtained a Social Security number prior to placement at ACS Systech Integrators. If requested,
Provider will also provide each Provider Staff's social security number tt ACS Systech Integrators for
purposes of billing and payment.
15. Equal Employment Opportunity - Provider will comply with the equal opportunity laws of the
United States and other similar country legislation. Previder will make every effort to mendt Provider
Staff such that candidates represent a diverse workforce with respect to race, sex, and ethnic. origin. At
ACS Systech Integrators request, Provider will provide mutually agreed upon statistics as to the
accomplishment of this objective,
16. Employee Relations and Orientation.- Provider will track performance and conduct periodic
performance reviews with all Pmvider Staff which may include any relevant performance feedback
provided by ACS Systech Integrators with respect to the aPplicable assignment Provider will provide an
orientation for its assigned Provider Staff that offers information regarding assignment and status as a
Provider Staff. Topics may include but are not limited to security, safety, aueridance, and other ACS
Systech Integrators policies pertaining to Provider Staff. Provider will ensure that all c:andidates for
Provider Staff are screened according to procedures provided by ACS Systech Integrators. Provider will
administer all Provider Staff issues as they arise; including hiring, tertnination and disciplinary actions,
and resolving compensation and benefits issues. Provider will ensure that all Provider Staff Direct Pay
Rates are fair, reasonable and in compliance with all laws and regulations for the service being requested
and the geographic area in which the service is being pet-binned. Any requests for increases to an
individual's Direct Pay Rate are subject to the approval of ACS Systech Integrators, ACS Systech
Integrators Human Resources, and the ACS Systech Integrators Requesting Manager of the affected
Provider Staff. Provider will maintain a cunent database of Provider Staff information to include but not
limited to name, agency, Direct Pay Rate and Bill Rate, address, phone number, emergency centact, start
date, tenthesignation date, and reason for termination,
Reporting - Provider will provide ail required reports, as reasonably requested and defined by
17
ACS Systech Integrators, with sufficient and complete detail by each ACS SyStech Integrators business
unit and Provider Staff, to include but not limited to, employee name, Direct Pay Rate, period and hours
worked, location, position, skill level, geographic location, and Requesting Manager. Provider will
provide standard reports as requested by ACS Systech Integrators on a weekly, monthly, quarterly, and/or
annual basis.
Contract Number #
11
Rev AS
Compliance with ACS Systech Integrators Policies !Code of Ethics - Al/ Provider personnel and
IS.
Provider Staff assigned to ACS Systech Integrators will comply with the assignment location's policies
and procedures that are provided to Provider in writing, including a code of ethics document to be
provided to Provider by ACS Systech Integrators and which is subject to change from time-to-time.
Provider will obtain written acknowledgement ftom all Provider Staff of receipt of the publication.
Licenses and Permits - As part of the Services, Provider will be responsible for obtaining all
19.
applicable governmental or regulatory licenses, authorizations, and permits required in connection with
the performance of Services and to otherwise carry out its obligations under this Agreement and will have
financial responsibility for, and will pay, all fees and taxes associated with such licenses, authorizations,
and permits.
Correction of Errors — Provider will promptly correct any errors or inaccuracies in all Services
caused by Provider, including any errors or inaccuracies in any deliverables and reports created by
Provider. Such corrections wilt he provided at no charge and Provider will be responsible for any interest
or penalties incurred as a result of such errors.
20.
ACS Systech Integrators Responsibilities — The services to be performed by Provider Staff will
he performed under the direction, supervision and control of ACS Systech. Integrators. ACS Systech
Integrators will provide Provider Staff with a suitable workplace which complies with all applicable
safety and health standards, statutes, and ordinandes; all necessary information, training,. instructions and
safety equipment with respect to hazardous substances; and adequate instructions, assistance, supervision,
and time to perform the services requested of them.
21.
In arty event, ACS Systech Integrators will not assign Provider Staff to perform any of the
following works, unless the work is reasonably contained within a job description or is otherwise
approved in writing: lifting of items weighing in excess of fifty (50) pounds; operation of motor vehicles
(except forklifts/powered industrial trucks, if operated by Provider Staff certified by ACS Systech
Integrators pursuant to OSIIA's Powered Industrial Trucks regulations) or unguarded machinery; work 6
feet above floor level or work below ground level; work involving extremes of temperature; work
requiring use of a respirator; work on or around navigable bodice of water; handling of cash, negotiables,
valuables, merchandise, or similar property, or work involving handling of hazardous substances (as
defined by OSHA).
Service Levels — Provider acknowledges that its perfonuance of Services at a levet acceptable to
ACS Systech Integrators is critical. ACS Systech Integrators may use Provider Staff to perform functions
that are important to ACS Systech Integrators and/or to ACS Systech Integrators clients. In some cases ACS
Systech Imegrators may be contractually obligated to its clients to pay the client a service level credit if a
specified level of service is not maintained. During the term of this Agreement ACS Systech Integrators may
track Provider's performance through the use of service level measurements in a variety of categories. If
Provider performs at a level that is a concern to ACS Systeeh Integrates, ACS Systcch Integrators may
request a meeting with Provider to address those concerts.
22.
Performance Guarantee — Provider will provide a 10 business day performance guarantee for all
technical and professional Provider Staff and a reo (2) business day performance guarantee for all
recruited non-technical Provider Staff personnel. If Provider is notified by ACS Systech Integrators or
unsatisfactory performance witbin three (3) business days after the end of the appropriate guarantee time
period, ACS Systech Integrators will nor be charged for the hours worked during the applicable guarantee
periud. In addition, upon request by ACS Systech Integrators, Provider will begin searching for a
qualified replacement immediately.
23.
Staffing Serviees Agreement
Comet:et Plumber fit
22
Rey AS.
Revenues — Other than the fees described herein, all other revenues reeeiVed by Provider from
24.
sources other than ACS Systech Integrators related directly or indirectly to the -volume of business being
conducted by ACS Systech Integrators with Provider will be passed through tO ACS Systech Integrators.
Coiaract Martha #
23
Rev A5
EXMIT
DECLARATION OF PROVIDER EMPLOYEE
REGARDING WORK IPRODUCF OWNERSIEIIP AND CONFIDENTIALITY
The undersigned declares as follows:
I aro currently employed by the company identified below (the "Provider"), which is performing
1.
services for Affiliated Computer Services, Inc. or one of its affiliates ("ACS Systech Integrators") or an
ACS Systech Integrators client.
I understand and agree that all copyrights, patents, trade secrets, or other intellectual property rights
2.
associated with any ideas, concepts, techniques, inventioas, processes, or works of authorship provided or
created by me during the course of perfonning services for the Provider In connection with its engagement
by ACS Systech Integrators or ACS Systeth Integrators clients, (collectively, the "Work Product") will
belong exclusively to ACS Systech Integratom and will, to the extent possible be considered a woek made
by me for hire for ACS Systcch Integrators within the rrgning of Tide 17 of the United States Code. To
the extent the Work Product may not he considered work made by me for hire for ACS Systech lntegratom,
I agree to assign, and automatically assign at the time of creation of the Work Pmduct, without any
requirement of further consideration, any right, title, or interest I may have in such Work Pmdutt to ACS
Systech Integratom. Upon requett of ACS Systech Integrators, I will take such further actions, including
execution and delivery of instrument% of conveyance, as may be appmpriate togive full and proper effect to
such assignment in the United States and any foreign country. ACS Systech Integrators may agree that
Work Product that ACS Systech Integrators is Otherwise entitled to awn will be the property of clients or
others with whom ACS Systech Integrators does business
I understand that, in connection with my services for ACS Systech Integrators, I may receive or
3.
have access to certain infomiation that is pfoprielary andior confidential to ACS Systech Integrators or
one of its clients, Providers or other party With whom ACS Systech Integators does business (collectively
"Confidential Infornaation). Such information may include, but is not limited to, trade setters, pfichig,
methods, processes, financial data, lists, statistics, customer lists, software, systems or equipment,
programs, research, development, strategic plans, operating data and other business, customer or
personnel information or data, in Written, oral or other form. I understand and agree that I may discuss
and make available Confidential Information only to those ACS Systech Integrators employees and other
persons specifically identified by ACS Systech Integrators. Except as required by law, I will not disclose,
reproduce, copy or otherwise make availahIe to any third party (including my employer) in any way the
Confidential Infomiation or use the Confidential Information for any purpose, except as necessary Da
perform the services requested by ACS Systech Integtators.
I will immediately report to ACS Systech Integrators any violation or breach of the commitments
4.
made in this Declaration, whether the breach or violation is intentional or inadvertent.
I will abide by the commitments made in this Declaration regarding Confidential Information for
5.
the period I am perforufing services for ACS Systech Integrators and thereafter. I agree that my
obligation to maintain the commitments made in this Declaration will survive the termination of my work
for ACS Systech Integrators, whether or involnntaiy, and that upon the termination of my work for ACS
Systech Integrators, I will return all Confidenfial Information, including all copies of notes and other
- documents reflecting in any way the Confidential Information.
I understand that if I violate or breach the commitments made in this Declaration. I may be
6.
subject to legal action by rny employer andfor by ACS Sys -tech Integrators.
I understand and agree that I ani art employee of the PrOvider and nothing in this Agreement will
7.
be construed to create an employment relationship between ACS Systeth Integrators and myself.
Contraa Number ft
24
Rev A5
[Legal.Entity nine]
Declared and agreed to by Provider Empleyee:
_Signature
Printed Name
Date
Staffing Seivi6es Agr'eernent
Caturgo Nunth.grA
25
Rev AS
EXHIBIT 3
. BACKGROUND CHECKS
Provider will cxercise care and diligence in selecting candidates for assignment at ACS that will
reasonably preclude persons that are not trust worthy or have backgrounds which cause eoncem related to
ethical or critninal behavior. ACS performs work deemed sensitive for its clients and assign§ personnel to
sensitive tasks within ACS. As set forth in this Agreement, a criminal background cheek is required of all
Provider Staff.
1. ACS does not as a normal practice accept assignment of any individual convicted of crimes either
felony or misdemeanor involving theft or burglary and violent crimes such as murder, rape, or
criminal assault. However, the Equal Employment Oppouunity Commission takes the position
that it is discriminatory to automatically exclude applicantslemployees from employment or
career opportunities solely because they have a criminal cenvietion or have been arrested. If an
exception Ls requested, Provider will notify the ACS Business Group HR. representative who, in
consultation with the hiring manager, will consider the following factors among others when a
criminal conviction (both misdemeanors and felonies) is discovered in determining whether or
not to accept pignment of the Provider employee. (The only exception to this policy is minor
traffic violatkini.)
•
o
o
o
o
•
•
Nature of the conduct and how it may relate to the job opening
How recent or remote in time was the conviction
If anyone was injured
Disposition by the court (probation, incarceration, or deferred adjudication)
Applicant's age at the time of the act
If there are any other convictions (Type? When? How many?)
Severity of the 'crime
Educalional Verification:
Any position requiring a college degree andfor professional certification in a pardcular field or a
government issued license requires education and professionalllieense verification. The education
verification should include the highest academie degree attained in the profession applicable to the
position.
Staffing Sex-vices Agreement
Contract Meinber
26
Rev AS
••EXTrailiT 4 .
REMOTE USER. MINIMUM IT SECURITY STANDA1RDS
Purpose
IL
This rr Sectnity Standard defines a set of minimum and recommender:I IT seetuity requirements for external
connectivity into an ACS Systech Integrators network or system. Tbe primary intent of this Standard is to provide a .
set of minimum requirements and reCommendations for any system that remotely connects to an ACS Systech
Integrators network or system via the Internet.
2.
Scope
The "Standard. Minimum Requirements!' section of this standard provides mandatory requirements for any system
that remotely connects into an ACS Systech Integrators network or system via the Internet. This incitidet, but is not
limited to contractors, client% home based & traveling employee% Each ACS Systech Integrators business unit, and
their respectiVe IT Staff. is responsible for ensuring that these minimum standards are implemented and adhered to
within each of their respective operations. Additionally, each ACS Systeeh Integrators business unit is expected Id
add more specific IT security controls as deemed necessary by ACS Systech Integrators business unit management,
rep/ataxy requhernents. andfor contractual obligations.
Definitions and Abbreviations
3.
• WEP Wired Equivalency Protection, a form of enayption
* WPA Wi-rt Protected AcCess
• LEAP Lightweight Extensible Authentication Protocot
Wireless Network Access Point
a
AP
• csG Commercial Solutions Group
Standard Minimum Requirements
4.
•
Maintain current anti-virus software with effective virus definition updates: Updates must be set to update
automatically or, at a minimum installed weekly.
A sepunte user account for ACS Systech Integrators system access must be utilized with a unique ID and
password (tbis account is not to be used for personal use). Access to an ACS Systech Integrators network
or system requires the use of a unique ID and password. Ensure that the user account is configured with a
minimum of (8) character% alpha and numeric combinadon.
•
When accessing an ACS Systech Integrators network or system, you must use a password protected
screensaver timeout with passwords that are configured with a minimum of (8) character% alpha and
numeric combination. The screen saver timeont must activate within (10) minutes to protect your remote
access console.
O When utilizing wireless connectivity to access ACS Systech Integrators remotely, the Broadcasting of the
&SID must be disabled where possible (i.e. on a home-based wireless AP). Additionally, you must use, at a
encryption for any remote wireless connectivity into an ACS Systech Integrators
minimum,
network or system by using WEP. WPA or LEAP.
0 Operating System patches and updates must be kept current either manually or preferably by utilizing an
"auto-update" process (Le. Windows Update) where possible to keep current with security updates and
patches. Critical updates and security patches must be applied on a monthly basis or as otherwise directed.
Contract Aricathit f.
27
Rev A..5
Pursuant to ACS Systech Integrators IT Security Policy, ACS Systech Integrators ernptoyee l contractors
will nat divulge their ACS Systech Integrators system login or email passwords. All ACS Systech
Integrators user IDs and passwords must be kept confidential and protected at all times.
O When using ACS Systech Integrators hardware. the use of .'pirated" or unlicensed software is prohibited at
time.
any
•
Email attachments from unknown andfor non-trusted senders must not be opened. If an email with an
attachment from a non-trusted sour= is received, do not open it. Delete email attachment of this type
immediately. Attachments ending in .exe, .vbs..js should never he opened.
VPN). is mandatocy fotany computer system or FDA arrsitig ,.
O The use of an encryption technology
ACS Systech Integrators via the Internet 3DESis Our minimum standard and AES is prefaced.
9
The use of two factor amhentiattion (Le.. password arid Token) is mandatary far ACS Systech Integrators
corMacters. clients, home based, & traveling employees whenever accessing ACS SYstech Integrators
internal networks or syStems via the Internet.
a The use Of. PGP Whole Desk Encryption is mandatory On any oarnputer•sySteM or FDA used by ACS
Systech Integrators contractors, clients; home based & traveling employees to access ALS Systeeli
Integrators internal netWorks Or systoms via the Internet:
•
The use of Personal Firewalls are required on any computer system or PDA used by ACS Systech
Integrators contractors, clients, home based & traveling employees to access ACS Systech Integrator;
internal networks or systems via the Internet.
•
The Outlook Web Access (OWA) is provided for use- by ACS Systech Integrators employees. This feature
allows ACS Systech Integrators employees to access their e-mail via secure (i.e, encrypted) interact
connections. However, the user mnst always exit out of the Browser when they exit out of Outlook.
Standard Recommendations
S.
o
Regularly run Spywatelltdware software to maintain the integrity of your system.
o
Disable File and Print Sharing in Windows unless there is a busiaess-specific necessity.
•
Set your web browser Internet Security Zone Settings to Iligh.
a Systems connecting to an ACS Systech Integrutors - network should be securely configured with an OS
version released on or after the year 2000-
Contraci Number #.
28-
Rev A.5.:
EXHIBIT 5,
DATA SECURITY
Data Security ConireIs. Provider will document and maintain adequate:
(a)
Data security controls, such as, but not limited to, logical access controls including user sign-on
identification and authentication, data access controls (e.g. 2-factor authentication for remote
access, strong and robust passwords for application level access protection of all System
applications, data files, databases, repositories and libraries, regular reviews o f account usage, and
automated account deactivation of unused accounts), accountability tracking, latest commercially
available anti-virus software, secured printers, restricted download to disk capability, and
provision for System backup. Provider will ensure at each Service Location that appropriate data.
controls are implemented and that no logically shared (i-e. without firewail or logical Partitions)
environmeats exist with other busineSses or other Provider customers for all WANs„ LANs,
network connections, dial-up connections, DASD, distributed systems, or any other computer
systems.
Retention processes and policies for all data security events (i.e„ reports) , in accordance with
applicable laws, regulatory requirements and information security requirements. •
(c)
All data security controls, policies and procednres will be communicated by Provider ta all
Provider personnel at least annually, and upon such Provides personners assignment on each ACS
Systech Integrators or ACS Systech Integrators etistomer account Provider and Provider
personnel who have access to any Confidential Information will sign a document ackaowledging
that Provider has communicated the policies and procedures to such individual and the
individual understands and acknowledges that ha is required to perform accordingly. Moreover,
such document will include a commitment by Provider personnel that if he or she becomes aware
of any non-compliance with the policies and procedures pet forth herein he or she will promptly
notify Provider, who will, in turn immediately notify ACS Systech Integrators of such- noncompliance.
Provider will audit its electronic security controls on a regular basis, bin no less frequently than biannually.
(d)
(e)
All Provider personners access activities with respect to Confidential Information will be
available to ACS Systech Integrators upon ACS Systech Integrators reasonable request (eg, who
accessed a particular ACS Systech Integrators or ACS Systech Integrators customer account, the
information accessed, whether changes were made to the account information).
WOrkstation Controls.
Provider will cause all workstations providing access to Confidential
Information to be controlled at all times, including, but not limited to, physical controls such as laptops
being physically locked down to the user's desk. All such workstationS will be:
(a)
(b)
located in a physically segregated work area
positioned to face away from any common areas of the facility such as windows
(c)
equipped with appropriate access control, including 2-factor authentication for remote access,
strong and robust passwords for application level access protection of all system applications,
and(or application time-out after 15 minutes or less of non-use
(d)
configtilul with the late-St commercially available anti-virus software, with a mechanism to cause
(c)
configured in accordance with industry standards; and,
secured such that there Is no transfer of Confidential Information without permission or consent by
ACS Systech Integrators- or ACS Systech Integrators customer or as permitted under the
applicable customer service agreement
(1)
the anti-virus software to be kept current
Sctnity
Contract Nuatbar#
29
Rev A5
(a)
(b)
Provider will maintain a, log, in elettronic format, of all security incidents, both physical and
electronic related to this Agreement. including inquiries from any person whose data resides on
Provider's information technology systems. This log will be made available to ACS Systech
Integrators upon its request.
Provider will notify ACS Systech Integrators of any electronic or other breach of its informatioo
technology systems within 24 hoUrs of Provider first becoming aware of such incident.
Systenas SeeMrity.
(a)
Provider will doenment and maintain robust network based . intrusion detection capabilitieS rut all
network.s so that successful and unsuccessful attacics against the front-tier of servers will be
detected.
(b)
Provider will peiform maintenance on production servers over a protected, dedicated network
between Provider's corporate offices and the applicable production information technology
systems. Provider will not perform maintenance access to production servers over the Internet
(c)
Provider information technology system networks will he configUred so that each desktop andrall
servers have the latest cominercially aVailable ariti-virus protettion.
(d)
Provider's informatiOn technology sYstems associated with- thiS Agitement will be dedicated
solely to the perfennance of the Services herminder.
i.
V.
All Confidential information will be maintained on a separate server, in a phytically and
logically secured en9ironment that protects it from any unauthorized access,
modification, theft, misuse, or destruction.
Allsoftware applications. used in connectien With the Services:Will be solely dedicated to
the perferrnance Of the Services in the applicableTaskOrder..
lino event will Third Party Information be Oared on the sante server or storage device as
a CoMpetitOr Of Stich third party. A Competitor- is an organiation that a reasonable
persen, familiar With the, business of the applicable third. party who Third Party
Information is being stored. woUld consider to be a corilpetitor of stich third partY..'
Encryption.
(a)
The highest encryption Secure Socket Layer ("SSL") will be used when transmitting andfor
communicating Confidential Information across the Internet Any communication of Confidential
Information across the Internet through applications will use an encryption system that is
aceeptable to ACS Systech Integrators. Any encryption products used by Provider will be nt least
FIPSI40-2 certified.
(h)
Passwords stored in databases will bo one-way hashed.
All Confidential Information stored in Provider repositories or otherwise backed up will be
encrypted prior to bacIcup.
(d)
VI.
Provider will allow the review of cryptographic controls and processes by ACS Systech
Integrators or its customers, as reasonably requeSted.
Development Separation.
(a)
Robust procedures will exist to securely separate any application develoPment processet from any
and all live' data.:
Cargraci Neanber
30
ReV
(b)
Data used in developMent and teSt systems Will not contain "live" copies of preduction
Confidential Infamtation, unless expressly authorized by ACS Systech Integrators.
(c)
titer and test user access ID's and passwords will be deactivated on a timely basis, that is,
promptlyupon the earliest possible determination that a particular account is no longer required.
Vli. Network Security.
(a)
Provider will document and maintain robust:
i.
in
iv_
(b)
Network intrusion detection sensors facing the Internet, and inside the internal trusted
networks to detect attempted attacks against the information technology systems in any
Way related to this Agreement
First-level firewalls (in front of the web servers) to protect the web servers from attack,
Seeond-level firewalIs (betweeo the Web servers ancl appliattion servers) with a higher
level of security to protect the application and database servers in the event that the web
servers are compromised.
Third-level firewalls (between the application servers and database servers) with a higher
level of security to protect iho database servers in the event that the web servers are
compromised.
All netWork devices (e.g.. Servers, Routers, Switches) will be hardened in accordance with
industry best practices and manufacMrer's recommendations. Provider's entire network will be
monitored 74 X 7 X 365 to identify and. respond to any and all computer security incidents. Ail
information technology systems will be pratected so that Confidential Information cannot be
downloaded by an unauthorized person(s). Such protection will be effected through the ute of a
tier, application server tier and database server tier).
three tier architecture (web server,
VI1L Physical Security/Employee Risk
(a)
Provider Site:
(i)
(ii)
(iii)
(13)
Provider will maintain physical security at all Provider facilides and locations. Such
security will include, but not be limited to, steel entrance doors without any windows,
24x7 video cameras at all building entrances, alarmed doors and windows which are
connected to a central alarm system and alarm service provider, restricted electronic
badge access and access logs to areas where Third Party Information is located, and all
other reasenable measures that are appropriate under the circumstances.
A commercially reasonable prov-ss for distributing and recovering any and all badger
which allow for access to areas where Third Party Information is located.
Provider will notify. ACS Systech Integrators of any physical breach of the Provider's
facilities within 24 hours of Provider's fast becoming aWare of the breach.
Client Site:
Background Checks: Provider will conduct background investigations on any of its employees
who will work at Client's site to ensure that no security rislc is taken by ACS Systech Integrators
by allowing the entry of such employee. Provider must provide proof of the background
investigation upon request by ACS Systech Integrators.
lX.
Vulnerability and Penetration Testing.
(a)
At /east once a year. Provider will select an independent, qualified vendor (reasonably acceptable
to ACS Systech Integrators) to conduct vulnerability assessment and penetration testing of
Provider's security processes and procedures, including the Services, in order to identify potential
Staffing Services Agreemeat
Comma Nianber
31
Rev A5
(b)
Security Vulnerabilities e`Testing"). Provider will conduct Testing on ail computers and
information technology systems used indirectly (if under the control of Provider or any of its
subcontractors) or directly in providing the Services or in suppert of the Servics.
Provider will provide to ACS Systech Integrators, via an agreed upon secure communications
method, a written report summarizing:
a Results of the Testing
a Any risks identified during the Testing
a Detailed description of any Security VUlnerability (described below)
▪ Corrective action taken or plan of action for correction of any identified Security
Vulnerability, ineluding date of fmalresohttion
o
Classification of Security Vulnerability as high risk, medium risk, or low risk,.
•
High Risk Vulnerabilities are simple to exploit, unskilled attackers can easily obtain and
execute, exploit tools are well known and readily available, popular, the circumstances
under which the attack may occur are common, and attackers can gain privileged access
or severely impact System operation including denial of service.
•
Medium Risk Vulnerabilities are simple; requiring only general toinputer security
knowledge; exploitation techniques are fairly well known, easily obtained and executed;
the ciecumstances under which the attack can occur are somewhat common, attackers can
gain limited user or network level access.
Low Risk Vulnerabilities are complex, requiring detailed computer security knowledge
and experience, exploit technittues are not widely known and difficult to obtain or '
execute, detailed knowledge of vulnerable systems is required, or Circumstances under
which the attack may be successfully exploited are very rare little or no chance of an
attacker gainiug access to &system.
Provider will correct identified Security Vulnerabilities according to the following schedule:
•
(e)
a High Risk Vulnerabilities will be corrected within one week of the time Provider should have
reasonably become avtare of theirexistence.
* Medium Risk Vulnerabilities will be corrected within one moeth of the time Provider should
have reasonably become aware of their existence.
(d)
a Law Risk Vulnerabilities will be corrected Within three months of the time Provider should
have reasonahlybecome aware of their existence.
All Testing conducted by Provider will be subject to non-diselosure and confidentiality obligations
consistent with the restrictions on use and nondisclosure set forth in this Agreement.
Security ASSessnleut
ACS Systech Iutegrators reserves the right tO Conduct (or cause a qualified, independent third
party to conduct) a security assessment for verification of Provider's security processes and
procedures, including vulnerability assessment and penetration testing of Servims, in order to
identify potential security breaches ("Security Assessment"). Such Security Assessment will be at
ACS Systech Integrators cost and may be conducted no more than twice per calendar year;
proVided, however, that if a security breach of any kind occurs, or ACS Systech Integrators
reasonably believeS could occur,. ACS Systech Integrators may perform additional Security
Assessments.
During the Security Assessment, ACS Systech Integrators will take commercially reasonable steps
(b)
to cooperate with Provider to avoid impact on Provider's systems which support Provider's
customers.
ACS Systech Integrators will provide to Provider, a written report summarizing:
(c)
Rev AS
32
Staffmg Services Agreement •
(a)
Contract Weber!!
(d)
a Results eithe Security Assessment
a Any riska identified during the Security Assessmeat, dttdiug
o Classification of any Security Vulnerability as high risk, mediurn risk, or low risk. as set forth
in Section W(b) above
o Detailed description of any Security Vulnerability
o Recommended corrective action for any ideutified Security Vulnerability.
Provider will correct any identified Security Vulnerabilities in accordance with Section IV(c)
above.
(e)
All Security Assessments conducted by ACS Systech Integrators will be subject to appropriate
non-disclosure and confidentiality obligations.
(f)
If the Security Assessment reveaLs that Provider's processes and procedures do not meet ISE)
13799 minimum standards, or otherwise as set forth in the security plan agreed upon by the
parties, then Provider will promptly take appropriate actions to change its processes and
procedures to conform to such standar& and wilt use all commercially reasonable efforts to
implement such changes in a timely manner.
NI. Disaster Recovery.
(a)
Provider will have a clearly defined and tested disaster recovery plan including robust capabilities
to provide business continuation, disaster recovery and trisis management Such disaster recovery
plan will be documented - and tested, and documentation of the disaster recovery plan will be
Provided to ACS Systech Integrators for review and approval by ACS Systech Integrators upon
ACS Systech Integrators request Provider will notify ACS Systech Integrators of any revisions to
the disaster recovery plan.
(b)
Provider's disaster recovery plan will include the location of its recovery sites for each Provider
location at which Confidential InformatiOn is stored, utilized or transmitted.
(c)
Provider's disaster recovery plan Will be designed to recover its business operations from a
disaster within 72 hours.
Provider will test all disaster recovery plans at least annually. Provider will provide to ACS
Systech Integrators its plans for all disaster recovery tests reasonably in advance of such testa for
ACS Systech Integrators review-
(d)
(e)
Provider agrees to notify ACS Systech Integrators in writing and reasonably in advance of any
disaster recovery plan test so that ACS Systech Integrators, or ACS Systech Integrators designated
third party, can attend and/or review the disaster recovery plan test and review test results.
(f)
Proyider agrees to allow ACS Systech Integrators to schedule integrated business recovery
exercises With the Provider upon the reasonable request of ACS Systech Integrators.
(g)
Provider will take all reasonable precautions to prevent and mitigate any disaster that may affect
Provider's ability to provide services under the Agreement.
Upon the occurrence of a disaster it any of the Provider locations involved in the provision of
Services or where Confidential Information is stored or utilited by Provider,. Provider will
immediately implement the disaster recovery plan and notify ACS Systech Integrators of such
implementation and any extetnal dependencies necessary to implement the plan.
(i)
Provider will provide to ACS Systech Integrators a post-incident report that documents the
implementation and efficacy of Provider's disaster recovery plan after the occurrence of a rest or
diaqster at any of the Pmvider locations involved in the provision of services to ACS Systech
Integrators or where ACS Systech Integrators Confidential Information is stored or utilized by
Provider.
Staffing Serviees Agreement
a*raet Number/7
33
ReV
. EX:0E131T
ACS SYSTEM ThlTEGRATORS TRAWL AND gXPENSE POLICY.
(Additional Client policy or requirernews May be impIernented by ACS Systeth IntegratOfs.)
The following are the standards set and administered by ACS Systech Integrators for travel and ewnses in reference
to the Staffing Services Agreement sigted between Affiliated Computer Services, Inc. ("ACS Systech Integrators")
and Net4Site LLC. ("Provider"):
Scope
This Policy applieS to AU cousultants, subcontractors and other non-pmplbyees includiog PrOvider Staff traveling at
the expenk6 of ACS Systech Integrators (collectively, "Travelers").
Responsibility and Enforcement
Travelers are responsible for reading, onderstanding, and complying with this Policy.
ACS Systech Integrators will reimburse Travelers for all reasonable and necessary expenses while traveling on
authorized ACS Systech Integrators business.
KCS Systech Integrators assumes no obligation to reimburse Travelers for expenses that are not in compliance with
this- policy, government regulation& or contractual requirement& Travelers who fail to comply with this policy may
be subject to delay or denial of reimbursement.
ACS Systech Integrators reserves the right to audit all submitted expenses either before or after reimbursement. ACS
Systech Integrators may question any activity such as a failure to book the lowest airfare, hotel, or car rental rate.
Actual Costs:
All travel and living expenses are billed for the actual costs incurred. Travelers will advise ACS Systech Integrators
of expenses that are out of the ordinary arid obtain pm-approval in advance. Receipts are retained for all expense&
ACS Systech Integrators does not pay per diem meal allowance& Receipts must be submitted with invoicing in
order to receive reimbursement.
Airfare:
Travelers are expected to book the lowest cost logical ahfare The lowest cost logical airfare is defined as the
lowest logical airfare between the point of departure and destination that includes the following:
* A two hour window for domestic flights and four hour window for international flights, that i& a flight
within two or four hours of the requested departure time must be accepted
o
Alternate metro airports should be considered in order to identify the most economical fare (e.g.,
LaGuardia, Newark, .1.14c.)
A non-direct flight or one that makes one or more stops should be considered if the flight does not add
more than two hours to the flight or when you are traveling the day or evening before you are expected
to conduct business
The following types of low fare alternadves will he considered in determining die lowest cost logical airfare *
special negotiated.fares, noo-refundable fares, penalty fares, and advance puochase fares.
Aid
—are iS the cost of one round trip coach fare according to the following roles:Reservations and, ticketing are made as early as possible, using published discounted, advance bookings, ia order to
obtain a reasonable fare. These fares are normally non-refundable. ACS Systech Integrators assumes the risk of the
cost of any penalties due to cancellations as a testa cif Acs Systech Integraters changes in Travelers schedules.
Provider assumes die east fer anY penalties arising ft:Om ProSider's requested schedolechanges.
ACS Systech Integrator4.d0e,1 net pay for business class travel. Reimbursement is for coaCh class only..
Contract Number#
Rev AS
Lodging:
Lodging is acquired near the ACS Systech IntegratMS/Client office location where the Traveler will report to work
and consistent with business travel rates for the area. Travelers use the lower of Provider's or ACS Systech
Integrators/Clients corporate rate at designated national brand hotels whenever possible. Travelers are entitled to
stay in a single room with a private bath. Travelers MuSt dse a moderately priced hotel.
Meal expenses:
Meal expenses are billed on actual costs, upto a maximum of $35/day
including Breakfast, Lunch and Dinner. Receipts arc
required.
Car Rental:
Car rental is for a Compact car. Travelers attempt to share transportation whenever possible_ Gasoline for rental
vehicle is reimbursable (excluding rental agency fueling charges).
Every reasonable effort must be made to return the rental car:
go To the original city unless approved for a one-way rental.
■i• Intact (i.e., no bumps, scratches or mechanical failures)
• Orr time, to avoid additional hourly charges, and
• With a full tank of gas
ACS Systech Integrators will generally not reimburse employees for fueling charges by car rental companies.
TaxisiTrains;
ACS Systeeh Integrators is billed for the cost of taxi, bus, shuttle, or train fare to the ACS Systech
IntegAntors/Client's offices where the Traveler reports to work. Travelers attempt to use the most cost and time
effective means for commuting to the ACS Systech Integrators/Client's office locations.
Parking/Tolls:
Provider may bill ACS Systech Integrators for the cost of parking and tolls associated with transportation to the
Traveler's work site, as well as airport parking and mileage to and front the airport.
Wfileage is billed at the cunent published IRS mileage rate (if applicable).
ACS SystechIntegratonACS Systech integratcasACS Systech IntegratorsACS Systech IntegratorsACS
Staffmg SerFices Agreement
Contract hionhir#
35
Systech Integi'ators
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EXHIBIT 4:
WORK ORDER.FORM
MIS WORK ORDER ("Work Order") is entered into between Net4site t_LC Mans attain") and ACSSystech integrators (Syst.h). WHEREAS,
Consallant and Systech entered into a Stalling &tykes Agreement with an Effectiire Date of 10130iDa (the ,v+greentear), and desite to establish tbis
%ad:Order there under,
NOW. THEREFORE, for good sad valuable consideration, tht receipt and sufficiency of which is hereby nekrit.h,d,ea. Consultant and Systech
agree co sapptcraent the Agreement as follevis:
L Term. The mon of this Work Order ceramences on (MAO ("Ciumnineemern Date") The temrination date will be in accordance with the
termination date listed in table I, subjemto paragraph 6 below end termination prOvisionii of the Agreernent
2. Dermed Werner. Except as defined herein. or otherwise required by thecontext herein, alt defined terins used in this Work Order hove the
meaning setfonh in the Agreement.
•
3. Work Order. Under this Work Oak. Consultant will provide the following Consultant Staff at the Hourly Ratc(s) indicated to assist Systech
with the project described as: Provide Project Management consulting to Basic Energy Service&
Table 1:
Nag Padrnalsabhaa
Natne
Frojealdariagement
-SIMS
Start Uale
.
08103109
Termination Date
09/30/10
Hatay Rate
$140
Expenses
At:tuals
.
.
.
.
1
All amounts in US Dollars tinieSs specified.
4. SottwareirEqultiotent Use. ConsdtanraStaif has re carry hiSfher own laptop with any business related software. Client will provide access to
Client owned software or equiPment at termite&
5. rajniat., Payment will bernade per the terms of (he :Agreement: Overtime wilt bay he paid.with prior written autheriion by our VP of
Finance aidserrizing Overt me atioched to the thin sheet.
'6 Termination- ACS may terminate this Wad( Ortiet7or request removal of any Consultant employee assigned tinder this Work Order at any
time. ACS will pay Consultant tor approved fees and expert= imaged tip to the point oftermination or remaval, subject to cerag at the
Agretmcni
YottreAgreera
ent. All terms andeorditions of the Agreement shall remain trt full Foreo nod effeet an:limply to this Work Order. In the mica
7of &conflict between the terms of the Agreement and the terms of this Work Order, the terms of the Agreement shad c on-01unit= expl icitly
stnItd otherwise in ihis Work Order.
'Mims otherwise determined hySystech, Consultant shall be required to complete the services required under Ws' Work Order For the full
duration sseiffed above. Wallureof Consultant to comptete this Work Order through the la duration speeMed above shallentille Systeeh
to recover ravin Consultant ell costs and damages (irielndln,g, without ihnItattem, lost pronts) arising out of Consultant's failure to complete
this Work Order througlt the fall duration specified abovewITNESS WHEREOF, undersigned authorized representatives of the panics have executed and made this Work Order to be effective as of the
Cornmeneacient Date.
Net4site LLC
By;
Primed Name:
Title: Vrr...: 1;10
\IA '-11
Date; -
C Fl%
ten
s
—
ACSSYM"
pi
.*-1 •
By:
Printed Name: Andy Bhatnagar
lide: Se Dinemor-Consuldng Operations
Date:
41 0 If
EX4IMIT
'TAM: ottont FoRM
- id Affiliated CCirisrmter rviecs. Ire. rm.:S:5AP
ULM T■LSI: ortlItit r Tad. Nk icentmed :ma betweal cjtc. I 11: Tróvid-.il m
Solutions-•
aft4 AL5' S AP Solutions. entered Into a Stalliag Straka Agreement uith an Orcctivc 0=01'1w:opt (1hc -Agiv6.,11-j;
MEAS.
end ckshdto:131.111ith this TasL Order atm took.
•
Iflrkftichle fiembyzernmAccitml. ['Toylike cn4.....S SM.%
Now. TneRgetmig tut 0,g0.4 and rafuable.oanaddcraion, the tercipt
SoMions agree to soppletoant Ilo A ipmcmInn
1. ism: ma itria. of thli Trak f_7,nl . coo:loco= tio I I/17;011("Commertaerra .oll Data, i ha term inatton dale
bc in eeeehlenee with ar
&1awdinniscinsncfdn AOL
Wm:Wien jeee hetc4 in table /. suhject to
3. Detirted Tenni. airer4 as &tined herein or calwr .oise minima try the tootext herein, till defined tentis usectin th.E% Truk Onkt his c tin
me=ag rat ficili in thCAgrrerneoL
3.
onkr. Novwill PFP.v.IdC. the ro(Inring .rn3•14r Staff al tha ilourry {1.54(s)indiewoftn
solid= wi.th gyFolcradribal as Provide
CO:tsulting to
Trak fintcr.. UnthitTed.
Tabla •I: c.. cdtploto al rovra ior cacti Prpylelor crnplopo lobo
Ham&
SAP SP
Start Deo
111111U1
Teeminhtlan1341re
04/ Ing
Expanses
armfanod.
Maar I:Mara'
Rodotiroa Fluttflon .
Hourty Rata
P-
Os
Acts*
MI =Dural in LS llollatt oaks, spooked
ocany.hi,1c ounIsptovv.fth any itwiemst reletcd softie-ere. 01071( 4,111 pnvida ae..rts ri
4. §ortwarci.E.qaiptator Ilse.. Provider Sfa
Cli=t oincd soflti arc Or iquirchent asteqtiltc.
1 ro.r4
1It mide pet thatantao1uhe Aucoasett Ott/lime oilIonly I= paid with Fiat wan= auilani.ation by Our VP Of
pitarie ataharizing ilmniutz.znachal to ttictime sheet;
6-
Tetra IPPIIMT. AMtnay tr./1714mM this Task °Pict M tmtPcst remain! of any Provider emPlo)CO iisstnaltzda thh141/r4erat any.thoe-
ACS 1411 peg, Provider fornript,weri Av
1pessimandsud og. athpf•eint.ofte-rminaticri or remora. subject to tents e f the Aicrceiceel
H fame and arc:cm and apply to. ;Ilia Task Wet In thcc-ctiA
7. peke Arrtenthit: itllteruss sad peptlitiveie.orthc Agieeracel shell ftusious
ofacuellitibawe-cod*ecmts of ilia Agi'.....d4.,;(*ic1 II= arms qf this 17.z.k Ch4cr.thc terms of the AtreentueehatimeimItrase - mpllehly
sleteetogetwilia lnIJuitTmalr peer.
•
Notwithienregoa nrollIng to the conehery in 00.10, AM SAD Salinizinstalthi. int% solicit:and Mrc rroVider S.latTxprking under thin *ink
Iinillyufusnykindtarjovtdco.
Pd.= et erty limp ailirr*it (6) -Mandu fullniiing des Effecthic DPW vrithotd. any. o
tuiloims. Coutinetor stall be rtnuIrcd to catnoltlt. e servket retptlettl under ibis Work Order
Vaal Oben** &remised. by ACSS
far at Cull duration Wit Ited &hoc. [Folios-a af Con notto r to complete' Olt Wurk flnlri throuits- c fulidorn blots IpecIfltd
calltIcACS SAP Saslow! ta ismer kita ci.ntrarpt all coats at:4443in (IndudIum S ■ iitinut li:nicntlan. fast prolliz) arhing out af
Cantraelnes White tit CO nipTel e Ibtf Work OnleelbrAng4 tEts raIl daratia a totalled above.
IN VaTICESS WIllSREGI; ranters ignod atitholimi irosientsti*3 01114 pa.-tics ham. ciccuug
Cohnncncsixiint134.e.
Al.'S SA r
LLV4 . 1
1
Ety:
Prmosilame Psiti 6Ji n; Dile415/1
1,11) :••• Zoo Lt±.?:_rt____
Datc
Nome: Itakcv Time- Tide: Sr: VP.CokiktOritratihrts
Mice
-JAN-1-3 2009
1-:):111t1ITT
TASK tlitlIfIt
r1- ctrd r a tcy,:mn Zs-rs au LW
LWc IASI .olitutit r
=.'1. phd A Os
14rilcei.Vereient 1 4 u Ilikohni)i (IL3tstig uhs...Amsinst-r ars..: es r•tii-irk
ALS klItch Term:Awl ere:4rd nen .•
this ti.a...On!../ their un•Ws„,
iceidalt4 lijilMcncy of it hith fictelts azlnniskilecd.
TliguEFoRI:, iuzm.I .04 •
herrtaisin nries it, 3upjdasintes 034 AftrnOtelit aic fullaa.t1
I. Tl- ala.11 ,ciainl ufth4
!ii,• list/
alga. muitauxt alt 12.1141ael.!amylcrucmcal Owe") Thy Iciininahin 431c will in in acsunt•nra will• iii
isuninalinWasza limrd in sable P. :III!jed to p.ws.z.japh
ixiow Ana Iannhm4IormhtunnhIIm glcasirnt.
f•tsitted 1gnat Esesps dslliszd list6n sithevni ;avant i7(11. mim.l 1.rria, all &P.M fauns uird in skis Tnsl. Oukt kite
incasdisg int trash in dm Apralernt.
;.
Onkr. Ve-lut Urit Inds
liesgrants•iall Ott riajni
Pnwiiks milt puni4114'hilLinilv.I'finlittrStatTal 1w l !unify Raids)
iiral.M.-S !leech
Business Xcehsrua Nc eam:nulling zngasic.ExieigklDirect
Tables 'It COrstpato it rowo (or ei.c4 Provides" eznislo yme to Lto 'at tripod.
Mum
-:-..—
13timiCQ Tong Yul5
gnu .= ran
ilon
Hi/Me= Xeelsiut
.
. Artbitect
Stati Data
Urtns
Terintrsailob Rita
kl 1 -tP.s
Hourly Rafts.
S I iS NO
Evenkcsk,
!wadi
1
I
.
.
I
AThesnoimir so Cli i Wars ii.nlcsakciticd,
,
I
4. Sala a ragaprucul i'ir. Pral.ido E!aWhamlnarnihimtmi nun IytialtmjAny boiniss re.■ !cd‘oflkwe_ Cirrot
Vilensowind "aware at Nitivinrinit•INIAlcd.
1
lbekralu am.Ar rtcpirm. rube win nily k paid sqdri pier rOt
Pinning: Vaykliall14/1 Ic nu4m
Virneceinekinising Overdinenunclksltu Aida disit.
c.
Ellaninatraa. ACS la* laraingc this lll/inks al tripm.-t ;mind a...I. trait:a CIRIPic4
an.icr Shit 11•I. (Itect al ..ny.
,NCS ;I/ pay phi; iect ttriumosutt fcnrtm.1tmpanraa ir.cartrd ap .lu
conin.d. Ladino. in Scans of tlic..i.g.tccinFa
7_
tati,uthtirt Its, ntg 'Vint
trn-rowor
cotn.o.! ain.ltkios oftho lic5tvoirr2 4.11 roT:iin ifs pl Intreail I cil&rt pal Apply u, thii TA•1. iIttkr. hi lir •-•,,-4
Arrcisiensel,l en wool 'of this:Till 'Darr, dig iito1de Apse:nod stiiall meet unkti s‘phsuly .
efa o.,,aakt nztcnu ili: torai
r.fl”.
iodic last Okla.
Cals.; °them iirdittealksnlr
ACS ti) stcch lninFralon. tnntrantur
he /squired on iumplize shr utir.nti snieirad minks shit Win Lqc..pu....n.r.,iscik.iploi iLk wok. ahlit itirduch It=
lftrrAc5SpIiall iuicialups a ictostr (rent Dina:clef all inns and dartugst Unsladlne.nittinut
I lathrn,iraat peas
nut itt Contrsistor's failure h. ennaptstr dik WitskOrdcr 1441 ,30 dir fulldu radian sticellitil 'dawn.
ontrr bar thefdlisiiiradess
sLu
III Wril•irSS WilIiKl4lI. urskraicrx =thou/tit irat,cr,
Crin.icrw-estretn
LLC ' L.,
`—t1
1,1;
rriia,aN.vezt
initis, psrlisi lust ci.saard and lima.: dm. 144 Mk: hi he cgcik n• rde
61atcf/Y1;t4 kiDACAM
vc
2-10Ave I
F
AO;
lb,
.Nyor.tol Num: ltajrcii);zt
tali! tin VP-Csinsulang Opciniinns
ikIa —1..2-4 301 Og.
pECLAMATM OF PROVIPER EMPLOYEE
Sep 09 09
oa-aot)
660440,22w
Ck Sin&
02
EXBRigT 4
WORK ORDER EciiRlg
1ilSWOROR(WOrkOCt')is droned into betwx.nlichisite-ILC ("Committal') arid ACS Systedzaltegettcm (sYsteeb). WHEREAS'.
Consultaistand Systredi entered into a Steffiiig Setvices Agregnen t with an PffecdVis Dam of 10/30108 (tho "Agreent*`), end desire to en:Alit, this.
Work Order there temler.
NOW,1"11:EREPOI3E, forgood and valuable consideration. the receipt and saidendy
agree to supplement the Agneemed as follows:
of which is hereby arigaowledged. Consultant and Sysieeh,
L yklz. The Mon of thii Wort Order commences on trialtOP ("Cornmeneentent Dad') The tenduatIon date itfltbc in accordance; w
' ith the
tenninatioit datelined in table 1, subject to paragraPh 6 belour and termination provisions of the Agreenser
•
Thdlgettitmt. Exceptan defined herein or otherwise sequin:VI the contest herein. ell defined terms merlin this Work Order have the
meaning sct forthi theAtputtrient,
•
Nstk_ctEtr. Under thia liti'brioOrder,Consolotnt wiiiptovidethafalldwing Camelia:it Staff at the Ifoudy Rate(s) framed to assist %rstech.
With the projeddesedbed as: Provide S11104/13D1consulting to flitsfelEactu Servids.
Tebtia 1:
Name
Stinkesan Kansan
Skills
SO/MYDEOI
Start Data
07/21i09
TertnInfdlern Data
O9/3041)
Wooly Hata
31 .10
Expenses
Aciush
AU amounts fa CM Dollars u dess a . =Wed.
Softwareirsculpment Use. Consultant's Staff has to carry hiSiher own laptop with any business related so-Aware_ OicnLedIl prmilde aer:C:a toCitcart (MAO softsnarc or equiprneot akreolmi.
5. yavntent. Pep:Oast will be Issas *the terms of the Agreement. Overtime will ady be paid with prior written authorization by trer VP of
4.
Mimi= authorizing Owittme kneehedto the time sheet:
6. rszmIngliti. ACS may [marinate this Work Order Or request removal deny Cori4ltant emplöyto essIgaed under this Work Order al atrY
time. ACSwifl payCOtsu1toit ibrapptoved fees sad iscpeases incorrod up to the point of terrainadon or removal, saki* to taros of the
Agreensent
7. . Mativo ftreement. Altiermssnd conditions of theAgreement shag remain hi MI force rind effect end -apply to this Woirk Order. Trt the event
eft. eammethetween the terms of the Agoserrient and the terms of this Work Order. the lerriss of the Agreement Ann enntrel itnlms explicitly
stared otherwise in thisWodeOrdee.
Unless otheivisodefradried by Systech,Conaultant shall bored:pit -00 oaniplete thetervites rerpthed omits. this WO& Order for thi, fall
duration speeirredelrom Mitre of CI:ninth:ant to temple* this Work Order throligh t fur thlt dursitlart specified above shdl ecultlisSyctech.
to recover roans Consultant silL crists4o4 damages (Inducting; willioattlInilhallory lest profltsY raising out of Consultant's /Miura to crimp/de,
thin WO& 0 rder Oxon& the fads:radon specified above.
wriNgss WHEREOF, undersigned uuthorbed represeotatives of the patties have executed arid made this Work Order !lobe efthetive as date
Commencement Date,
ACS Systeda
NedsiteLLC
4"1.
By:
Primed Num Andy Bhamagar
Prirtict 1 Konc: CV
'Ede: Sys 7,1etr-vrk
Date:
A11.11.1
Tide: Sr. DirecT-ConnthIng Operations
(-1-9
Dat
0 g 01
EXHIBIT 4
WORK ORDER FORM
TIES WORIC ORDER ("WorkOrdet1 is ertiered into between Net4site LLO ("Consultant") and ACS Systech Iatevatars (sypoct-): WHEREAs,
Consultant and Systech entered into a Staffing Services Agreementwith =Effective Date of L050/08 (the "Agreement) and desire to ettablish this
Werk Order thereunder.
NOW; THEREFORE for good and valuable eoruideratiOn, the recciptand sufficiency of which is benthy acknowledged ; Consultaut and Systech
agree to supplement the Agroement as folloWsf
1. Term The tenn of this Work Oidel tonimences.on 08/03/04 .("Cornmencement Date) The termination date will be in accordance with the
teoninadon date listed in table t, aulaieet to paragraph 6 helew and wminntion proVisiMiS of the Agteentemt_
2, pufirteilTerntl. Except as daned .hmtio or othetwise required by the context hereircall defined autos used in thisWork Order have die
meaning set forth in the ARmernest.
3. Work Order. Under thit Work Order, Consithant will provide the foilowing Consultant Stiff et the Houriy.RateCs) -indieated LisasatitSysteck,
with the project described as: Provide SAk, Basis consulting to Basic Energy Serviees_
Tabie 1:
Name
Natesh Singh Bided
Skills
Basis
4ferf Dade
D7121/(19
.
09E6110
Termination Orate
--.
Howly Bale
_
$119
Amuals
Expenses.
MI amounts in US Cellars unless specified.
4.
StaltrardEqUipment 'Use. Oranultanrs Staff has to cany hi dim . own laptop with any business related software. .CUcatwiUproVide access to
Client owned Software or equiptamt as required.
5.
made per thetenns of the Agyeement. Overdfue will only be paid with priOr writtertauthorization by our VP of
Zugr&. Paynsanlw
Einince authorizing Met:time attached to the dam sheet.
6, Termination. ACS May terminate IlliSWOrk.Dider orrequest removal ofany.Consultantemployee assigned underthiS Work Order at arty
time, ACS will payConSohnnt fer approved fees and expt:uses incurred up to the point of termination orrertinval. subject to terms of the
Agreement.
7. OatireAerrement..All lerrosund conditleas of the Agreernentshali remain in full force nud effect und apply to this Work Order.. In the event
of a conflict between the tenrs of the Agreeineut end the terms of ads WIA Order, the terms of the Agreement shall eantrol unless explicitly
stated otherwise id this Work Order.
Unless ahem* detennfoe d by Systechi Constiltantshan be required to curaplete the servfees required tinder this Work Order for the full
duration specifted abut* [Fullum Cortsul tent In complete MIS Work Order through the full dutatiou spediledtthervethall en6tle Systeeh
tit teenier froMCOnsellant allsostS and damages (including * witheut Ilmilatloxi, lOSL profits) arising out of Consultanee Mere to completethis Weds Order through the roll darati on specified abate.
JtT WIIINIESS WHEREOF, undersigned authorized representadves
CormnamernentDate..
or the parries have executed and made this Work Order to be effective as of the
Neasite
AC.S Sys 4a.tf%
By:
By:
hinted NatTle: C
Thlm
1-‘1,11
Dater
Printed Name: Andy Bfintnagar
Title: Se. Director-Consuluing Operations
011
Date:
-11-1
-11"
7:2 Q.e
,
NN5)
IS tfit
tors
Cl""

NO. 05-11-00999-CV - 5th Court of Appeals

Transcription

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