This SERVICE AGREEMENT (“Agreement”) is entered into this day of 2017 (“Effective Date”), by and between, “Client,” and Ocrolus, Inc. (“Ocrolus”). Client and Ocrolus may be referenced herein individually as a “Party” and collectively as the “Parties.”
WHEREAS, The Client requires a fast and accurate review of U.S. bank and credit card statements from a variety of financial institutions (“Records”);
WHEREAS, Ocrolus has developed a cloud-based tool called Perfect Audit (“PA”) for parsing, searching, summarizing and storing inancial data, mitigating the need for manual review of these Records;
WHEREAS, Client wishes to use PA for its financial assessments.
NOW THEREFORE, in consideration of the mutual promises made herein, the receipt and sufficiency of which is hereby acknowledged by the Parties, the Parties agree as follows:
1. Client shall transfer Records for review to be analyzed by PA. Ocrolus shall parse anvalidate these Records using PA to produce reports, as requested by Client based upon the data (“Reports”)
2. Client and Ocrolus shall agree to the scope of services for Record review and Reports on an Ocrolus order form (“Order Form”). The Order Form shall set forth at a minimum volume, time requirements, and pricing for Client orders. Order Forms shall be subject to the terms and conditions of this Agreement. With the exception of terms relating to pricing and delivery contained in an applicable Order Form, the Parties understand, acknowledge and agree that in the event of any incongruity or conflict between the terms and conditions of this Agreement and any Order Form, the terms and conditions of this Agreement shall control. For the absences of doubt, any term appearing on an Order Form which conflicts with this Agreement in anyway shall be void to the extent that such conflict exists.
3. Based on the limited case studies that have been conducted, Ocrolus has estimated an accuracy rate for the PA product of approximately 99% (computed as an average of two sub-calculations): date accuracy and dollar amount accuracy. Date accuracy refers to the percent of transactional dates that are correctly parsed by the system. Dollar amount accuracy refers to the percent of transactional dollar values that are correctly parsed by the system. Client understands, acknowledges, and agrees that PA analysis results have been proven to be over 99% accurate in these internal case studies on transaction dates and dollar amounts. Client further understands and hereby acknowledges that, although Ocrolus seeks to always maintain this level of accuracy, such results are not guaranteed. Ocrolus makes no representation, warranty, or guarantee with respect to accuracy or any specific outcome or findings from Ocrolus’ provision of the services or from the use or function of the PerfectAudit.com product. CLIENT UNDERSTANDS, ACKNOWLEDGES AND EXPRESSLY AGREES THAT THE SERVICES AND PRODUCTS PROVIDED HEREUNDER ARE PROVIDED “AS IS” WITH NO WARRANTY, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
4. Client understands, acknowledges and expressly agrees that the turnaround time chosen in the Order Form for the Service is provided as an expected review period and Client shall hold Ocrolus harmless for any delay which may occur. Ocrolus will in good faith attempt to meet the turnaround time, Ocrolus makes no warranty, whether expressed or implied that the Services will be complete within the turnaround time.
5. Client understands and hereby acknowledges that means of accessing PA will be PA web-app and/or integrating via API.
6. Upon completion of PA analysis on any Records, the Reports shall become sole property of Client, for use in any lawful past, present, or future use. This paragraph shall survive any expiration or termination of this Agreement.
7. Client agrees and acknowledges that Ocrolus may maintain certain anonymous data and analytics about Client’s use of PA, and the reviewing process (“Exhaust Data”). Client agrees that Ocrolus may maintain and share Exhaust data with third parties in its sole and absolute discretion.
8. Ocrolus shall provide customer support to Client during the term of this Agreement from 9am-6pm U.S. Eastern Standard Time, excluding Ocrolus company holidays. For a list of company holidays, please contact the administrator at firstname.lastname@example.org.
9. Fees; Billing. Client shall receive an invoice upon the completion of Services. Invoices shall be payable upon receipt, subject to a seven (7) day grace from the date of receipt.
10. Independent Contractor Status. Ocrolus shall be an Independent Contractor of Client only. Nothing contained in this Agreement shall be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship. Ocrolus shall have no authority to act as agent for, or on behalf of, Client, or to represent the Client, or bind the Client in any manner. Ocrolus shall not be entitled to worker's compensation, retirement, insurance or other benefits afforded to employees of the Client Ocrolus shall be responsible for all items of taxation associated with furnishing of the Services. Client shall not be responsible for any taxes attributable to Ocrolus including, without limitation, any taxes payable for net income or receipts, payroll tax, withholding tax, or such other taxes based on Ocrolus doing business in any particular jurisdiction. Notwithstanding anything to the contrary herein, Client to the extent provided by law to pay all applicable sales taxes for Services.
11. Credits. Any amounts due to Client from Ocrolus may be applied by Client, at the sole election of Client, against any current or future fees due to Ocrolus. Any such amounts that are not so applied by Client shall be paid to Client by Ocrolus within thirty (30) calendar days following Client’s request. This Section shall survive the termination of this Agreement.
12. Non-binding Terms. Any terms and conditions included in a Client purchase order shall be deemed to be solely for the convenience of the Company, and no such term or condition shall be binding upon the Company unless expressly accepted or consented to thereby.
13. Suspension of Services. Ocrolus shall not suspend any part of the Service where: (a) Client is reasonably disputing any amount due to Ocrolus up to thirty (30) days from the date Ocrolus receive notice of the dispute in writing; or, (b) any unpaid but undisputed amount due to Ocrolus is less than fifteen (15) business days in arrears. Notwithstanding anything contained in this Article I, Section 14, Ocrolus, in its sole and absolute discretion, may suspend services to Client if (a) Client’s dispute of amount due to Ocrolus has not been resolved within thirty (30) days of Ocrolus receiving written notice of the dispute and the justification therefore; or, (b) any undisputed amount due to Ocrolus is fifteen (15) days or more in arrears.
II. SERVICE PLANS
1. Ocrolus shall provide Service set forth in Section I pursuant (“Services”) to the following service plans and subject to pricings set forth on Exhibit “A”.
2. Free Trial. Services may be provided free of charge for the first 100 pages of Records reviewed by Ocrolus. Such free trial, if applicable, is only offered to new customers who have not previously used Ocrolus’ Services. Free Trial shall expire automatically after the 100th page has been reviewed and the pricing set forth in Exhibit “A” shall apply to all Services performed by Ocrolus in excess of the free trial. Expiration of the Free Trial shall not affect Client’s enrollment in any of the service plans provided for herein.
3. Default Service Plan. Default Service Plan shall mean On Demand Service at a rate of $0.44 per page with a turnaround time of 48-hours. Unless otherwise modified pursuant to a validly executed Order Form and subject to the Free Trial, Client agrees to the Default Service Plan shall apply.
1. Either party may terminate this Agreement at any time prior to the expiration of the then-current term by giving written notice. Such termination is effective thirty (30) calendar days after the date of such notice.
2. Upon any termination, Ocrolus shall provide Client with all applicable outstanding invoices, records and reports within thirty (30) days from the date of effective notice of termination or expiration. Client shall make a final payment to Ocrolus for all obligations not previously paid for but still owed by Client within thirty (30) days from the receipt of the final invoice.
1. Definition of Confidential Information. Ocrolus acknowledges that during term of the Agreement, Ocrolus will acquire, be exposed and have access to, materials, data and information of the Client, its affiliates and their respective customers or clientele (“Confidential Information”). For purposes of this Agreement, such Confidential Information shall include, without limitation, all of the following materials and information in whatever format: sales receipts, customer lists, vendor lists, and Records as set forth above. Notwithstanding the foregoing, Confidential Information shall not include any information, which is generally known to the public or to companies in businesses similar to the Corporation, or which later, through no act of the Ocrolus or any other party to this Agreement, becomes generally known. For the purposes of this Agreement Confidential Information shall not include Exhaust Data (as defined herein).
2. Commencing on the date hereof, and for an indefinite period thereafter, Ocrolus shall hold in the strictest confidence and shall not, directly or indirectly, disclose, divulge, reveal, report, publish, transfer or otherwise communicate any Confidential Information collected, maintained, or used in the course of performance of the Agreement except as authorized by law and with the written consent of Client or disclosure is required by law or compelled by court of competent jurisdiction, either during the term of the Agreement or thereafter.
3. In the event that a subpoena or other legal process is served upon Ocrolus for the Record(s) or information contained therein, Ocrolus shall promptly notify Client and cooperate in any lawful effort to protect the Records and the information contained therein.
4. Ocrolus shall, within a reasonably prompt time frame, report to Client by telephone and e-mail any unauthorized use or disclosure of the Records.
5. Client agrees and acknowledges that Ocrolus may use Confidential Information for internal compliance and audit purposes to ensure performance and accuracy of Record review and may share the same with third-party’s engaged by Ocrolus for the purpose of conducting audits, accuracy reviews, or compliance reviews. Ocrolus agrees to use industry standard methods to anonymize Confidential Information used pursuant to this Section IV (5) whenever possible.
6. Client agrees and acknowledges that Confidential Information may be shared with cloud sourced third-party data verification contractors (“Cloud Reviewers”). Confidential Information shared with Cloud Reviewers shall be limited to sections of text or documents which require human verification. Confidential Information shall be anonymized to the greatest extent possible while maintaining accuracy in review of Records.
7. All of Ocrolus’ confidentiality obligations under this Agreement shall survive the expiration and/or termination of the Agreement.
V. INDEMNIFICATION AND LIABILITY
1. Client hereby agrees to defend, indemnify and hold harmless Ocrolus, Inc, its parents and affiliates together with their respective employees, agents, directors, officers and shareholders, from and against all the liabilities, claims, damages and expenses (including reasonable attorney's fees and costs) arising from or otherwise related to Client’s use of PA, breach or alleged breach of the copyright, trademark, proprietary or other rights of third parties.
VI. GENERAL PROVISIONS
1. General Provisions.
With copy (which shall not constitute notice) to:
Eric M. Leander, Esq.
c/o The Wagoner Firm PLLC
8 Thurlow Terrace
Albany, NY 12203