This SERVICE AGREEMENT (“Agreement”) is entered into this day of (“Effective Date”), by and between Ocrolus, Inc. (“Ocrolus”) and the client reviewing and agreeing to this form and accessing Ocrolus’ system and services ("Client") . Client and Ocrolus may be referenced herein individually as a “Party” and collectively as the “Parties.”
WHEREAS, The Client desires to obtain an efficient 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 financial data, mitigating the need for manual review of these Records;
WHEREAS, Client wishes to use PA for use in its business.
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 and validate 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 the 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.
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 OR FOR CLIENT’S SPEICIFIC BUSINESS OR COMMERCIAL USE.
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 the PA web-app and/or integrating via API.
6. Upon completion of PA analysis on any Records, the Reports shall become the 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. Notwithstanding the foregoing or anything contained in this Agreement, Ocrolus maintains the right to delete, purge or otherwise destroy any Records or any other data provided by Client to Ocrolus once the corresponding Report has been delivered to Client. This paragraph shall survive any expiration or termination of this Agreement.
8. Ocrolus shall provide customer service to Client during the term of this Agreement from 9am-6pm U.S. Eastern Standard Time, excluding Ocrolus company holidays. The 2018 and 2019 Holiday Schedule and corresponding availability are:
|2018/2019 Holiday Schedule|
|No||Name Of Holiday||Date||Day||Limited / Off|
|1||New Years Day||1st Jan(2018 / 2019)||Monday(2018) / Tuesday(2019)||Off|
|2||MLK Day||15th Jan(2018) / 21st Jan(2019)||Monday(2018 / 2019)||LImited|
|3||Presidents Day||19th Feb(2018) / 18th Feb(2019)||Monday(2018 / 2019)||LImited|
|4||Memorial Day||28th May(2018) / 27th May(2019)||Monday(2018 / 2019)||LImited|
|5||Independence Day||4th July(2018 / 2019)||Wednesday(2018) / Thursday(2019)||LImited|
|6||Labor Day||3rd Sep(2018) / 2nd Sep(2019)||Monday(2018 / 2019)||LImited|
|7||Thanksgiving Day||22nd Nov(2018) / 28th Nov(2019)||Thursday(2018 / 2019)||LImited|
|8||Christmas Day||25th Dec(2018 / 2019)||Tuesday(2018) / Wednesday(2019)||Off|
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. Notwithstanding the foregoing, if Client, acting in good faith, disputes the accuracy or all or part of any such invoice, Client shall notify Ocrolus within three (3) days of receipt of the invoice in question, including the specific item(s) in dispute and the reason for the dispute. Upon receipt of any such dispute by Ocrolus, Ocrolus and Client shall work in a commercially reasonable and expedited manner to resolve any such dispute. Client shall remain responsible for payment of any undisputed or resolved invoices in accordance with this Section.
10. Independent Contractor Status. Ocrolus shall act as an Independent Contractor of Client. 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. 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 12, 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; SERVICE LEVEL AGREEMENT
1. Ocrolus shall provide the services set forth in Section I (“Services”)pursuant to the following services plans and subject to pricings set forth on the Order Form.
2. Free Trial. Services may be provided free of charge for the first 250 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 250th page has been reviewed and the pricing set forth in the Order Form 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.
4. Service Commitment. Ocrolus will use commercially reasonable efforts to make PA available with a Monthly Uptime Percentage (defined below) of at least 99%, in each case during any monthly billing cycle (the "Service Commitment").
Definitions. The following capitalized terms shall be given the meaning set forth below:
"Monthly Uptime Percentage" is calculated by subtracting from 100% the percentage of continuous 5-minute periods of Downtime during the month. Percentage measurements exclude downtime resulting directly or indirectly from any Ocrolus SLA Exclusion (defined below).
"Downtime" means more than a five percent Error Rate, or complete lack of external connectivity to the service. Downtime is measured based on server side Error Rate.
"Error Rate" means the number of Valid Requests that result in a response with HTTP Status 500 and Code "Internal Error" divided by the total number of Valid Requests during that period. Repeated identical requests do not count towards the Error Rate unless they conform to the Back-off Requirements.
"Valid Request" means requests that conform to the protocol for use of PA, and that would normally result in a non-error response.
"Back-off Requirements" means, when an error occurs, the Application is responsible for waiting for a period of time before issuing another request. This means that after the first error, there is a minimum back-off interval of 1 second and for each consecutive error, the back-off interval increases exponentially up to 32 seconds.
5. Service Commitment Exclusions
The Service Commitment does not apply to any unavailability, suspension or termination of the PA services, or any other Ocrolus Service performance issues: (i) caused by factors outside of Ocrolus’ reasonable control, including, without limitation, any force majeure event or Internet access or related problems beyond the demarcation point of Ocrolus Services; (ii) that result from any actions or inactions of Client or any third party; (iii) that result from Client’s equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within our direct control); or (iv) arising from our suspension and termination of Client’s right to use PA or any other Ocrolus system in connection with any breach by client of this Agreement or otherwise (collectively, the "Ocrolus SLA Exclusions"). If availability is impacted by factors other than those used in our Monthly Uptime Percentage calculation, then we may issue a Service Credit considering such factors at our discretion.
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 Client, or which later, through no act of Ocrolus or any other party to this Agreement, becomes generally known, or was already known by Ocrolus priori to any such information having been provided to Ocrolus. 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 by Client (at client’s sole expense) 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 crowd sourced third-party data verification contractors ("Crowd Reviewers”). Confidential Information shared with Crowd 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 for so long as Ocrolus maintains control or possession over any Confidential Information.
V. INDEMNIFICATION AND LIABILITY
1. Client hereby agrees to defend, indemnify and hold harmless Ocrolus, 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.
2. Ocrolus hereby agrees to defend, indemnify and hold harmless Client from and against all liabilities, claims, damages and expenses (including reasonable attorney's fees and costs) arising from or otherwise related to Ocrolus’ breach of this Agreement.
3. In no event shall either Party be liable to the other for consequential, incidental, indirect, punitive or special damages (including loss of profits, data, business or goodwill), from all causes of action of any kind, including any action sounding in contract, tort, breach of warranty, or otherwise. It is further agreed that each Party’s aggregate liability for direct damages hereunder shall not exceed the total amount of service fees paid or received by the respective Party in the one-year period preceding the date upon which any such claim first accrued.
VI. GENERAL PROVISIONS
1. General Provisions.