v1.7 ARISE VIRTUAL SERVICES CORPORATION MASTER SERVICES AGREEMENT This is a legal agreement (the Agreement ) dated Thursday, January 18, 2007 (the Effective Date ), between < Virtual Services Corporation > (herein known as "Virtual Services Corporation" and Arise Virtual Solutions Inc. (herein known as Arise ) collectively referred to as "the parties". WHEREAS, Arise is a virtual contact center that provides customer care solutions to its clients (the Clients ) using customer service representatives ( CSRs ) who provide their services from remote locations (the Customer Care Service ); WHEREAS, Arise Certified Professional shall mean a person who has received written certification from Arise that he or she has successfully completed the Arise required certification program in basic CSR skills ( Basic Certification ); WHEREAS, Arise desires to maximize performance by contracting with entities whose principal owners are certified as Arise Certified Professionals, actively involved in the direction of their businesses and the performance of CSR services as employees of the Virtual Services Corporation; WHEREAS Virtual Services Corporation is organized to provide CSR services for a fee, has a principal owner who is certified as an Arise Certified Professional and is actively involved in the direction of the business and performance of CSR services as an employee of the Virtual Services Corporation; WHEREAS both Virtual Services Corporation and Arise desire to create an independent contractor relationship one with the other; and, WHEREAS, Arise charges the Virtual Services Corporation a monthly service fee for the services (the Services ) that Arise provides to the Virtual Services Corporation (the Service Fee ); WHEREAS, there may be instances where a Client desires to directly contract with the Virtual Services Corporation to provide CSR services, as an independent contractor. NOW THEREFORE, in consideration of the foregoing and the mutual promises and covenants set forth herein, the parties agree as follows: 1. Independent Contractor Relationship 1.1 The Virtual Services Corporation is an independent contractor in the business of providing CSR services for profit, using its own facilities, equipment, employees and other assets owned, or contracted for, by the Virtual Services Corporation. All expenses associated with the Virtual Services Corporation s provision of CSR services under this Agreement shall be borne by the Virtual Services Corporation. 1.2 Arise agrees to engage the Virtual Services Corporation, and the Virtual Services Corporation agrees to be engaged by ARISE, as an independent contractor to provide CSR services for Clients pursuant to the terms and conditions of this Agreement. The Virtual Services Corporation shall not be subject to the personnel policies or procedures, if any, to
which employees of Arise or any Clients are subject, and Virtual Services Corporation shall be free to market its services to any other business or entity. 1.3 The Virtual Services Corporation shall have exclusive control of the manner, means and details of accomplishing the CSR services that it contracts to perform under this Agreement. 1.4 The Virtual Services Corporation shall be solely responsible for the hiring, firing and/or discipline of all of its employees, including Arise Certified Professionals. 1.5 The Virtual Services Corporation shall be solely responsible for the withholding, filing and payment of any federal or states taxes, including but not limited to income and payroll taxes, that may be due from the Virtual Services Corporation by virtue of its performance under this Agreement. 1.6 The Virtual Services Corporation acknowledges and agrees that the cash payments for its CSR services provided under this Agreement are its entire compensation, and shall be paid by Arise to the Virtual Services Corporation exclusively. 1.7 The Virtual Services Corporation agrees that it is solely responsible to compensate and provide any benefits that may be required by law (including but not limited to workers compensation and unemployment insurance) to any Arise Certified Professional employed by the Virtual Services Corporation to perform CSR services under this Agreement. The Virtual Services Corporation further acknowledges and agrees that none of its Arise Certified Professional employees shall be eligible to participate in any employee benefit program maintained by Arise or any Client, nor to receive any unemployment benefits, workers compensation benefits, or any other type of benefits or insurance from Arise or any Client. The Virtual Services Corporation shall obtain from each and every Arise Certified Professional employed by the Virtual Services Corporation to perform CSR services for Clients, a written waiver in the form set forth in Exhibit A hereto waiving any right to assert a claim with respect to any such benefit program, naming as beneficiaries of the waiver Arise and any Client for whom the Arise Certified Professional performs such services. Upon Arise s written request, a copy of each such waiver shall be provided by the Virtual Services Corporation to Arise. 1.8 As a material inducement for Arise to enter into this Agreement, the Virtual Services Corporation hereby makes in favor of ARISE those representations and warranties that are set forth in Exhibit B hereto. 2. CSR Services Opportunities 2.1 From time to time Arise at its sole discretion may offer to the Virtual Services Corporation the opportunity to provide CSR services to one or more Clients. Each such opportunity shall be set forth in a Statement of Work, which shall contain among other terms, the name of the Client, a description of the type of application to be serviced, the compensation terms, the required service level standards and the term of engagement. Subject to the conditions set forth in Section 2.2, below, the Virtual Services Corporation, at its sole discretion, may elect to accept such CSR services opportunity by signing the Statement of Work applicable thereto and returning same to Arise. Each such signed Statement of Work shall be deemed to be incorporated by reference into this Agreement.
2.2 Arise may offer CSR service opportunities under which the Virtual Services Corporation would contract directly with the Client, rather than through a Statement of Work, as provided in Section 2.1. In those instances, the terms and conditions of the CSR service opportunity will be set forth in the contract entered between the Virtual Services Corporation and the Client (the Client Contract ), and the remaining terms and conditions of this Agreement shall otherwise apply to the Virtual Services Corporation s use of the Service and Arise s provision thereof to the Virtual Services Corporation. 2.3 As a condition to accepting any Statement of Work or entering into a Client Contract, the Virtual Services Corporation is required to have: a principal owner who is an Arise Certified Professional that has received written certification from ARISE that he or she has successfully completed the certification program required to handle the particular application that is the subject of the Statement of Work or the Client Contract (the Application Specific Certification ) and is actively involved in the direction of the business and performance of CSR services as an employee of the Virtual Services Corporation; and, such other employees as are reasonably required to meet its obligations. 2.4 The Virtual Services Corporation shall not permit any Arise Certified Professional employed by the Virtual Services Corporation to perform CSR services under this Agreement unless and until such Arise Certified Professional has signed an Employment Agreement in the form set forth in Exhibit C and a "Non-disclosure Agreement" in the form set forth on Exhibit "D". Upon ARISE s written request, Virtual Services Corporation shall provide ARISE with a copy of each such executed document. 2.5 With respect to each accepted Statement of Work or Client Contract, and except as may be otherwise provided in each such respective Statement of Work or Client Contract: 2.5.1 The Virtual Services Corporation shall only assign an Arise Certified Professional employed by Virtual Services Corporation to provide CSR services under such Statement of Work or Client Contract who has received (and at the time of assignment still holds) the appropriate Application Specific Certification. Upon Virtual Services Corporation s receipt of notification by ARISE that the appropriate Application Specific Certification of an Arise Certified Professional employed by the Virtual Services Corporation has been revoked or suspended by Arise, the Virtual Services Corporation shall not permit such Arise Certified Professional to perform any further CSR services under that Statement of Work or Client Contract. 2.5.2 The specific service shifts shall be posted by Arise for acceptance by the Virtual Services Corporation, at the Virtual Services Corporation s discretion. Upon acceptance by the Virtual Services Corporation, the Virtual Services Corporation agrees and acknowledges that it is obligated to provide the requisite CSR services for each such accepted service shift ( Accepted Shift ), unless it receives prior written permission (which may be in the form of e- mail) from Arise to be excused from serving any such shift. The granting or denial of such permission to be excused from serving any such shift shall be at the sole discretion of ARISE. 2.5.3 For each Accepted Shift, the Virtual Services Corporation shall cause the Arise Certified Professional that the Virtual Services Corporation has assigned to the shift: to be available for service, by logging into the applicable systems and being in the ready status at least one (1) minute in advance of the start of such shift; and, to devote the entirety of the Arise Certified Professional s time during each Accepted Shift to the continuous and uninterrupted servicing of the particular application that is the subject of the Statement of Work or Client Contract.
2.5.4 The Virtual Services Corporation agrees and acknowledges that it is solely responsible for complying with the terms and conditions of the Statement of Work or the Client Contract applicable to it, including but not limited to all service level requirements. 2.5.6 The Virtual Services Corporation agrees that a responsible management representative of the Virtual Services Corporation shall be available to ARISE continuously during each Accepted Shift to resolve any issues that may arise during any such Accepted Shift. 2.5.7 The Virtual Services Corporation shall perform its CSR services in compliance with all applicable law, including laws governing anti-competitive practices. 2.5.8 The Virtual Services Corporation agrees and acknowledges that ARISE may use standard silent call monitoring systems, recording equipment and other industry standards such as mystery shoppers or customer surveys for quality and risk control. 2.5.9 No Statement of Work or Client Contract shall have a term of service longer than six months. 3. The Service; Service Fee and Charges 3.1 The Virtual Services Corporation agrees to use, and Arise agrees to provide, its Service under the terms and conditions of this Agreement. 3.2 Arise s current Service Fee and any other related charges ( Related Charges ), as well as payment terms and conditions are electronically posted on Arise s intranet site. Related Charges include charges that the Virtual Services Corporation is obligated to pay directly to third-party vendors, and charges paid to third-party vendors by Arise on behalf of the Virtual Services Corporation, which must be reimbursed to Arise. Commencing with the first day of the month subsequent to a principle owner of the Virtual Services Corporation receiving his/her first Application Specific Certification from Arise, Virtual Services Corporation will be charged a monthly Service Fee by Arise. The Virtual Services Corporation agrees to pay the monthly Service Fee and Related Charges in accordance with Arise s posted payment terms and conditions. 3.3 The Service Fee and Related Charges, as well as payment terms and conditions, and other terms and conditions of the Service, or of this Agreement, are subject to change by Arise from time to time, effective upon Arise's electronically posting of such changes on its intranet or internet site, or otherwise providing notice to the Virtual Services Corporation. The use of the Service is also subject to the policies established by Arise (the Policies ), which are also electronically posted by Arise and subject to change by Arise from time to time upon the electronic posting of such changes, or otherwise providing notice to the Virtual Services Corporation. 3.4 The Virtual Services Corporation shall only use the Service in furtherance of its provision of CSR services under the terms and conditions of this Agreement, and shall not use any equipment that is logged in to the systems of Arise, or of any Client or third party service providers, for any other purpose. 3.5 The Virtual Services Corporation shall only use equipment and services provided by third party vendors that meet the minimum requirements set by Arise 4. Limitations of Warranties and Liability; Disclaimer of Warranties; Limitation of Remedies
4.1 NEITHER ARISE NOR ANY OF ITS LICENSORS, EMPLOYEES, OR AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES ARISE OR ANY OF ITS LICENSORS, EMPLOYEES, OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, OTHER THAN THOSE WARRANTIES (IF ANY) WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS SERVICE AGREEMENT, ALL SUCH WARRANTIES BEING EXPRESSLY DISCLAIMED. NEITHER ARISE NOR ANY OF ITS LICENSORS, EMPLOYEES, OR AGENTS SHALL HAVE ANY LIABILITY FOR INCIDENTAL, LOST REVENUE, LOST PROFITS OR OTHER CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES SUFFERED BY VIRTUAL SERVICES CORPORATION OR ANY OTHER PARTY AS A RESULT OF VIRTUAL SERVICES CORPORATION S USE, THE OPERATION OR MALFUNCTION OF THE SERVICE, REGARDLESS OF WHETHER OR NOT SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE VIRTUAL SERVICES CORPORATION AGREES THAT IT WILL NOT IN ANY WAY HOLD ARISE RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICE (INCLUDING THOSE WITH WHOM ARISE MAY CONTRACT TO OPERATE VARIOUS COMPONENTS OF THE SERVICE). 4.2 The Virtual Services Corporation s sole and exclusive remedy against Arise for any failure or non-performance of the Service (including any associated software or other materials supplied in connection with the Service) shall be for Arise to use commercially reasonable efforts to effectuate an adjustment or repair of the Service, and: 4.2.1 In those instances where the Virtual Services Corporation has contracted directly with a Client to provide services, in the event that such downtime in any day (commencing 8:00 a.m.) occurs which results in the Virtual Services Corporation s loss of more than two (2) hours of service that it was scheduled to provide service to a Client for that day, the Virtual Services Corporation shall receive a refund or credit for the Service Fee payable for that day. Notwithstanding anything to the contrary herein, Virtual Services Corporation shall not be entitled to any compensation for loss of hours of service with respect to any hours selected to service: subsequent to the start of any systems outage; or, which hours fall within any Arise scheduled systems maintenance period. 4.2.2 In those instances where the Virtual Services Corporation is providing CSR services under a Statement of Work, in the event that such downtime in any day (commencing 8:00 a.m.) occurs which results in the Virtual Services Corporation s loss of more than two (2) hours of service of Accepted Shifts for that day, the Virtual Services Corporation shall receive a refund or credit for the Service Fee payable for that day, as well as payment from Arise of an amount equal to $10 per hour for each hour of service of Accepted Shifts lost up to a maximum of $30. Notwithstanding anything to the contrary herein, the Virtual Services Corporation shall not be entitled to any compensation for loss of hours of service with respect to any hours selected to service: subsequent to the start of any systems outage; or, which hours fall within any Arise scheduled systems maintenance period. 4.3 In the event that a court should hold that the limitations of liabilities or remedies available as set forth in this Agreement, or any portions thereof, are unenforceable for any reason, or that any of the Virtual Services Corporation s remedies under this Agreement fail of their essential purpose, the Virtual Services Corporation expressly agrees that under no circumstances shall the Arise total liability to the Virtual Services Corporation or any party claiming by, through or under the Virtual Services Corporation for any cause whatsoever, and regardless of the form of action, whether in contract or in tort, including negligence, in the aggregate, exceed the amount of the Service Fee paid by Virtual Services Corporation for the three (3) month period preceding the date such claim first arose.
5. Use of Login Codes, Software and Marks; System Security 5.1 Arise shall provide the Virtual Services Corporation with unique identification/access codes ( Login Codes ) for each Arise Certified Professional employed by the Virtual Services Corporation which Login Codes enable access to the applicable systems of the Arise, third party service providers or Clients for whom the Virtual Services Corporation s employed Arise Certified Professionals have a current Application Specific Certification. Login Codes provided to the Virtual Services Corporation constitutes Confidential Information, as defined in Section 6, below. Notwithstanding anything to the contrary in this Agreement, the Virtual Services Corporation shall not disclose the Login Codes to any other person other than the Arise Certified Professional to whom the Login Code is assigned. The Virtual Services Corporation shall assure that no Login Codes shall be used by any of its Arise Certified Professional employees other than the Login Codes assigned to each such Arise Certified Professional employee. Arise shall de-activate all of the Login Codes of any employee whose Basic Certification has been revoked by Arise, and shall de-activate the applicable Client specific Login Code(s) of any employee Arise Certified Professional whose Application Specific Certification has been revoked by Arise 5.2 With respect to any software that Arise might provide to the Virtual Services Corporation in connection with its use of the Service, Arise hereby grants to the Virtual Services Corporation a personal, non-exclusive, non-transferable Limited Use License for its use of the software only in connection with its use of the Service pursuant to the terms and conditions of this Agreement. The Virtual Services Corporation agrees that its officers, agents, employees, contractors or others acting on its behalf or in concert with it, will not reverse engineer, disassemble, de-compile, or otherwise attempt to derive the source code of the software, nor shall they sublicense, modify, network, rent, lease, loan, distribute or create derivative works based upon the software in whole or in part. Upon the termination of this Agreement, the Virtual Services Corporation agrees to delete completely from its computers or any others on which the software was installed by the Virtual Services Corporation or its agents, employees or contractors, any software provided to it by Arise, and to destroy any media on which the software was delivered to the Virtual Services Corporation. Except for this Limited Use License, no other license or permission, or right, title or interest is granted under this Agreement to the Virtual Services Corporation under any copyright, trademark, patent or other intellectual property right in the materials or products, services, processes or technology described therein. Arise, its affiliates and/or any third party owner of such rights retain all such rights. 5.3 Any documentation that Arise provides to the Virtual Services Corporation regarding the Service or any Client shall only be used for providing CSR services under this Agreement. The Virtual Services Corporation shall copy no such documentation unless specifically authorized by Arise in writing. Any such authorized documentation for copying must bear any copyright, trademark or other proprietary notice contained in such documentation. 5.4 The Arise Virtual Services Corporation name and logos and all related product and service names, design marks and slogans are the property of Arise or its affiliates. The Virtual Services Corporation is not authorized to use any Arise name or mark in any advertising, publicity or in any other commercial manner without the prior written consent of Arise. 5.5 The Virtual Services Corporation acknowledges and agrees that all product and service marks contained on or associated with the Service that are not Arise marks are the trademarks of their respective owners.
5.6 References to any names, marks, products or services of third parties or hypertext links to third party sites or information do not necessarily constitute or imply Arise's endorsement, sponsorship or recommendation of the third party information, product or service. 5.7 The Virtual Services Corporation shall not use any equipment to connect to Arise s systems or to provide CSR services to a Client, which equipment does not fully comply with Arise s specifications and requirements. Such specifications and requirements are contained within the Policies, as defined in Section 3.3 of this Agreement. In addition, Virtual Services Corporation shall fully comply with all Arise systems security protocol set forth in the Policies, and cause all Arise Certified Professional employees to comply with such protocol. The Virtual Services Corporation acknowledges and agrees that Arise shall have the right to audit, without warning or other notice to the Virtual Services Corporation, the Virtual Services Corporation s compliance with the Policies relating to equipment specifications and requirements and systems security protocol. 6. Protection of Confidential Information; Data Security 6.1 "Confidential Information" means all information, materials, documentation and data, relating to Arise, any Client or any third party, furnished and disclosed by Arise to the Virtual Services Corporation, its officers, agents or employees, whether in oral, written, graphic, or machine readable form, including but not limited to, products and services, intellectual property, distribution channels, strategic alliances, marketing plans, software codes, designs, procedures, processing flowcharts, configurations, formulas, discoveries, inventions, improvements, concepts, ideas, customer lists, business plans, financial information, contacts, training materials, operations and service materials, and other business and technical information, except for such information and data as the parties agree in writing is not proprietary or confidential. "Confidential information" shall also include Login Codes and the names and/or e-mail addresses of other Virtual Services Corporations or Arise Certified Professionals. Confidential Information shall also include information and materials in the Virtual Services Corporation s possession, custody or control for any other person or entity that the Virtual Services Corporation is obligated to treat as confidential or proprietary. Virtual Services Corporation shall use the Confidential Information solely in connection with its use of the Service to provide CSR services under this Agreement. It shall protect such information from disclosure to others, using the same degree of care used in protecting its own confidential or proprietary information, but in any case, using no less than a reasonable degree of care. 6.2 Confidential Information shall not otherwise be used by the Virtual Services Corporation or disclosed to anyone else with out the prior written consent of Arise, except that the Virtual Services Corporation may disclose Confidential Information on a need to know basis to any Arise Certified Professional employed by the Virtual Services Corporation who has signed a nondisclosure agreement in the form attached as Exhibit A hereto. The restrictions herein on the use and disclosure of Confidential Information shall not apply to information that: (a) was publicly available at the time of Arise's communication to the Virtual Services Corporation; (b) was in the Virtual Services Corporation's possession free of any obligation of confidence at the time of Arise's communication to the Virtual Services Corporation; (c) is developed by the Virtual Services Corporation independently of and without reference to any of Arise's Confidential Information or other information that Arise disclosed in confidence to any third party; (d) is rightfully obtained by the Virtual Services Corporation from third parties authorized to make such disclosure without restriction; (e) is identified in writing by Arise as no longer proprietary or confidential. 6.3 In the event that the Virtual Services Corporation is required by law, regulation or court order to disclose any of Arise's Confidential Information, it will promptly notify Arise in writing prior to making any such disclosure and shall reasonably cooperate in any efforts of
Arise to seek a protective order or other appropriate remedy from the proper authority. If Arise is not successful in precluding the requested disclosure, the Virtual Services Corporation will furnish only that portion of the Confidential Information that is legally required and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded the Confidential Information. All Confidential Information disclosed under this Agreement (including information in computer software or held in electronic storage media) shall be and remain the property of Arise or its licensors. All such information in any computer memory or data storage apparatus shall be erased or destroyed, and all such information in tangible form in the possession or control of the Virtual Services Corporation shall, at the discretion of Arise, either be destroyed or returned to Arise promptly upon the earlier of: (i) the written request of Arise or (ii) termination of this Agreement, and in any of such events and to the applicable extent shall not thereafter be retained in any form by the Virtual Services Corporation. 6.4 The Virtual Services Corporation acknowledges that Arise's Confidential Information is unique and valuable, and that breach by the Virtual Services Corporation of its obligations under this Agreement regarding such Confidential Information will result in irreparable injury to Arise for which money damages alone would not be an adequate remedy. Therefore, the Virtual Services Corporation agrees that in the event of a breach or threatened breach of such provisions, Arise shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of money damages. 6.5 The definition of Confidential Information set forth in Section 6.1, above, shall also include credit/debit card numbers and other credit/debit card data (collectively, Credit Card Information ) of any person who provides such information to the Virtual Services Corporation, or any of the Virtual Services Corporation s employees, in connection with the Virtual Services Corporation s provision of CSR services under this Agreement. The Virtual Services Corporation acknowledges and agrees that Credit Card Information is the property of the credit cardholder who provided such information and the Virtual Services Corporation has no ownership interest or other rights in and to such information. The Virtual Services Corporation shall only enter Credit Card Information directly into the data system of a Client, contemporaneously with the receipt of such information from the cardholder while handling such cardholder s call. Credit Card Information entered into the data system of a Client shall only be entered to process a transaction that has been expressly authorized by the credit cardholder. With respect to any Credit Card Information, the Virtual Services Corporation shall under no circumstance write down, screen scrape, screen capture, print, save to local media devices (such as the Virtual Services Corporation s computer system) or save to another storage method, that may place such Credit Card Information in a position to be shared, given, or utilized for fraudulent initiatives or otherwise. The Virtual Services Corporation shall not verbally disclose any Credit Card Information to any other persons or entities, including Arise or any of Arise s personnel. The Virtual Services Corporation shall immediately notify Arise in writing in the event that it suspects that any Credit Card Information has been disclosed to any person in breach of its obligations hereunder. The Virtual Services Corporation shall cause its Arise Certified Professionals and all other employees to comply with this provision. The Virtual Services Corporation agrees to permit Arise, any Client, or any credit card processing service, such as VISA or MasterCard, to audit the Virtual Services Corporation s facilities and systems for assure compliance with the foregoing. The obligation of the Virtual Services Corporation, and its employees, to comply with this provision regarding the protection of Credit Card Information shall survive the termination of this Agreement, irrespective of the cause, 6.6 The definition of Confidential Information set forth in Section 6.1, above, shall also include all information specific to any Client s business processes, systems, and information about such Client s customers (in addition to Credit Card Information) (such as social security
numbers, birth dates, telephone numbers and addresses, credit card numbers, social security numbers, financial information, names of family members), or such other information that a Client deems to be proprietary (collectively, Client Specific Information ). With respect to any Client Specific Information, the Virtual Services Corporation shall under no circumstance write down, screen scrape, screen capture, print, save to local media devices (such as the Virtual Services Corporation s computer system) or save to another storage method, that may place such Client Specific Information in a position to be shared, given, or utilized for fraudulent initiatives or otherwise. The Virtual Services Corporation shall not verbally disclose any Client Specific Information to any other persons or entities, including Arise or any of Arise s personnel. The Virtual Services Corporation shall immediately notify Arise in writing in the event that it suspects that any Client Specific Information has been disclosed to any person in breach of its obligations hereunder. The Virtual Services Corporation shall cause its Arise Certified Professionals and all other employees to comply with this provision. The Virtual Services Corporation agrees to permit Arise or any Client to audit the Virtual Services Corporation s facilities and systems to assure compliance with the foregoing. The obligation of the Virtual Services Corporation, and its employees, to comply with this provision regarding the protection of Client Specific Information shall survive the termination of this Agreement, irrespective of the cause. 7. Virtual Services Corporation s Hold Harmless. The Virtual Services Corporation shall indemnify and hold harmless Arise, its employees, agents, officers and stockholders (hereinafter collectively Related Parties ) from and against any and all liability, claims and causes of action, losses, costs, expenses and reasonable fees of attorneys, which are or may be imposed upon Arise and/or its Related Parties arising out of, or resulting from any breach of this Agreement 8. Term and Termination 8.1 This Agreement shall commence on the Effective Date and shall continue until terminated under Section 8.2, 8.3 or 8.4 hereof. 8.2 Subject to the provisions of the sentence which immediately follows, either the Virtual Services Corporation or Arise may terminate this Agreement, for any reason, by providing written notice of termination to the other party, with such termination to be effective the later of: 8.2.1 Thirty (30) days after from the date of providing such notice; or, 8.2.2 The date that the last Statement of Work and/or Client Contract expires. 8.3 This Agreement may be immediately terminated by Arise at any time, with or without notice, for the Virtual Services Corporation s breach of any provision of this Agreement, or for any of the following which shall also be deemed to be a breach of this Agreement: 8.3.1 Failure of the Virtual Services Corporation to provide CSR services in accordance with the terms and conditions of any Statement of Work or the termination of a Virtual Services Corporation s Client Contract by the contracting Client for breach by the Virtual Services Corporation; 8.3.2 Unprofessional, abusive, fraudulent, illegal or dishonest business practices or conduct by the Virtual Services Corporation with respect to the use of the Service, the provision of CSR services, or any other matter covered by this Agreement; or
8.3.3 Conduct by the Virtual Services Corporation that, in Arise s discretion, unlawfully interferes with Arise's contractual and/or business relationships. 8.4 This Agreement may be immediately terminated by the Virtual Services Corporation, at any time, with or without notice, for Arise s breach of any provision of this Agreement. 9. General 9.1 This Agreement shall be governed by and interpreted according to the laws of the State of Florida, without giving effect to any conflicts of laws provisions that would cause the laws of any other state to be applied. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. 9.2 Arise shall not be responsible for any delay in delivery or performance of any of its duties hereunder due to acts of God, or any other occurrence commonly known as Force Majeure. 9.3 The Virtual Services Corporation agrees that its right to use the Service is not transferable. The Virtual Services Corporation shall not assign its rights and duties under this Agreement, without the prior written consent of Arise 9.4 This Agreement constitutes the entire and only agreement between Arise and the Virtual Services Corporation with respect to the subject matter hereof and, except as otherwise provided below, supersedes all other communications and agreements with regard to the subject matter hereof. All written acknowledgements and/or authorizations that the Virtual Services Corporation has signed shall remain in effect. In the event of a conflict between the terms of a prior acknowledgement or authorization and this Agreement, the terms of this Agreement shall control. 9.5 All provisions of this Agreement, which by their nature should reasonably survive the termination of this Agreement, shall survive the termination of this Agreement. 9.6 If a legal action or other proceeding is brought by Arise or the Virtual Services Corporation against the other party arising out any breach of this Agreement, the party that prevails shall be entitled to recover reasonable attorney's fees, costs and expenses incurred, in addition to any other relief to which it may be entitled. 9.7 All notices to a party required under this Agreement shall be in writing and shall be deemed duly given either (i) when delivered in person to the other party hereto, (ii) upon confirmation of a facsimile transmission to the other party hereto; or (iii) five business days after mailed either registered or certified U.S. Mail, return receipt requested, postage prepaid, addressed, if to the Virtual Services Corporation, at the most current address of Virtual Services Corporation in Arise s database, if to Arise at 3450 Lakeside Drive, Suite 620, Miramar, FL 33027, or such other address as Arise may furnish the Virtual Services Corporation in writing. 9.8 ANY ACTION BROUGHT BY ANY OF THE PARTIES HERETO AGAINST ANY OF THE OTHER PARTIES HERETO RELATING TO THIS AGREEMENT SHALL ONLY BE BROUGHT IN BROWARD COUNTY, FLORIDA.
In witness whereof, the parties have duly executed and delivered this Agreement. Arise Virtual Solutions Inc. By: Title: By: Title: Vice President of Talent Management
EXHIBIT A WAIVER WAIVER OF EMPLOYEE IN FAVOR OF THE VIRTUAL SERVICES CORPORATION As a material inducement for, and in consideration of, (the Virtual Services Corporation ) agreeing to employ (the Employee ), the Employee acknowledges and agrees and follows: 1. It is solely the responsibility of Virtual Services Corporation to compensate and provide any benefits that may be required by law (including but not limited to workers compensation and unemployment insurance) to Employee. 2. Employee shall not be eligible to participate in any employee benefit program maintained by Arise or any client of Arise 3. Employee shall not be eligible to receive any unemployment benefits, workers compensation benefits, or any other type of benefits or insurance from Arise or any client of Arise 4. Employee hereby irrevocably waives any right: to assert a claim directly or indirectly against Arise or any client of Arise with respect to any of the benefits enumerated in paragraphs 1 through 3, above; or, to assert a claim with any governmental entity or any other third party seeking to hold Arise or any client of Arise liable for providing any of the benefits enumerated in paragraphs 1 through 3, above. 5. Arise and any client of Arise shall be deemed to be a third party beneficiary of this Waiver Agreement and each of them shall jointly and/or severally have the right to enforce this Waiver Agreement against Employee. Signed this day of, 2007. EMPLOYEE:
EXHIBIT B The Virtual Services Corporation hereby makes the following representations and warranties in favor of Arise Virtual Solutions Inc. as a material inducement for Arise to enter into this Agreement with the Virtual Services Corporation: 1. The Virtual Services Corporation has been duly incorporated under the Laws of the State of ( State of Incorporation ). 2. The Virtual Services Corporation has made all of its required filings under its State of Incorporation and has not received notice from such state that the Virtual Services Corporation has been dissolved or is delinquent in any required filings. 3. The following representation and warranty shall only apply if the Virtual Services Corporation s State of Incorporation is a State other than Florida: The Virtual Services Corporation is qualified to transact business in the State of Florida as a foreign corporation. 4. The following individual or individuals each own at least 49% of the outstanding capital stock of Virtual Services Corporation:. (each such individual defined as a Principal Owner ). 5. The following Principal Owner or Principal Owners shall be actively involved in the direction of the business of the Virtual Services Corporation and the performance of CSR services under this Agreement:. 6. As of the Effective Date of this Agreement, the following individual or individuals have been employed by the Virtual Services Corporation for purposes of providing CSR services on behalf of the Virtual Services Corporation under this Agreement: (each a CSR Employee ). 7. As of the Effective Date of this Agreement, the each CSR Employee has signed: a waiver in the form attached as Exhibit A to the Agreement; an employment agreement in the form set forth in Exhibit C to this Agreement; and, a non-disclosure Agreement in the form set forth in Exhibit D to this Agreement. 8. As of the Effective Date of this Agreement, the Virtual Services Corporation has obtained workers compensation coverage for any CSR Employee required to have such coverage under Florida law.
EXHIBIT C EMPLOYMENT AGREEMENT EMPLOYMENT AGREEMENT This EMPLOYMENT AGREEMENT dated as of, 2007, is between (the Virtual Services Corporation ) and (the Employee ). WHEREAS, the Virtual Services Corporation desires to employ Employee, and Employee desires to be employed by Virtual Services Corporation, under the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein, the Virtual Services Corporation and Employee hereby agree as follows. DUTIES 1. The Virtual Services Corporation shall employ Employee to perform call-taking services for the Virtual Services Corporation s clients at such times as the Virtual Services Corporation specifies. As a condition of Employee s employment with Virtual Services Corporation, Employee shall execute and abide by the terms of a non-disclosure agreement in the form attached as Exhibit A hereto. 2. The Virtual Services Corporation shall have the right to determine the manner in which Employee performs the call-taking services hereunder and shall hold Employee accountable for satisfying any performance metrics established by Virtual Services Corporation s clients that pertain to the services performed by Employee. 3. Employee while employed by Virtual Services Corporation will not perform any calltaking services other than pursuant to this Agreement, except as otherwise agreed to in writing by the parties hereto. EMPLOYMENT AT WILL 4. Either party shall have the right to terminate Employee s employment with the Virtual Services Corporation at will, for any reason or no reason. COMPENSATION 5. Employee s entire compensation by the Virtual Services Corporation for the performance of services hereunder shall be as agreed to by the parties. Employee agrees that Employee is not entitled to receive any compensation from a client of the Virtual Services Corporation and is not entitled to participate in any employee benefit programs maintained by such a client. To the extent Employee might satisfy the eligibility criteria of any such benefit programs, Employee hereby waives his or her right to assert any claim with respect to such benefit programs, which waiver is a material component of the compensation arrangement agreed to by these parties and is not premised on any assumption of Employee s status, as an employee or independent contractor, of any of Virtual Services Corporation s clients. The Virtual Services Corporation s clients shall be third-party beneficiaries of this Section 5. 6. While employed by the Virtual Services Corporation, Employee shall be entitled to receive prompt reimbursement for all reasonable employment-related expenses incurred by
Employee upon the receipt by the Virtual Services Corporation of an appropriate accounting of such expenses. MISCELLANEOUS 7. The Virtual Services Corporation may assign its rights and obligations under the Agreement to a successor of the Virtual Services Corporation s business without the prior written consent of Employee. 8. If one or more parts of this Agreement are declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not invalidate any part of this Agreement not declared to be unlawful or invalid. Any part so declared to be unlawful or invalid shall, if possible, be construed in a manner which will give effect to the terms of such part to the fullest extent possible while remaining lawful and valid. 9. This Agreement shall not be amended or modified except by written instrument executed by the Virtual Services Corporation and Employee. A waiver of any term, covenant or condition contained in this Agreement shall not be deemed a waiver of any other term, covenant or condition, and any waiver of any default in any such term, covenant or condition shall not be deemed a waiver of any later default thereof. 10. This Agreement, including Exhibit A hereto, forms the entire agreement between the parties hereto with respect to the subject matter contained in this Agreement and, except as otherwise provided herein, shall supersede all prior agreements, promises and representations, whether in writing or otherwise. 11. This Agreement shall be interpreted and construed in accordance with the laws of the State of Florida without regard to its choice of law principles. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written. VIRTUAL SERVICES CORPORATION By: ARISE CERTIFIED PROFESSIONAL Its: Date: Date:
EXHIBIT D NON-DISCLOSURE AGREEMENT NON-DISCLOSURE AGREEMENT Agreement (the Agreement ) between (the Virtual Services Corporation ) and (the Employee ), effective, 2007. WHEREAS, for the purpose as stated in Section 2 below, the Virtual Services Corporation and the Employee (collectively referred to as the Parties and individually referred to as a Party ) have determined to establish terms governing the use and protection of Confidential Information (as defined in Section 1 below) that the Virtual Services Corporation may disclose to the Employee. NOW, THEREFORE, the Parties agree as follows: 1. Confidential Information means all information, materials, documentation and data furnished and disclosed by the Virtual Services Corporation to the Employee, whether in oral, written, graphic or machine-readable form, including but not limited to, products and services, intellectual property, distribution channels, strategic alliances, marketing plans, software codes, designs, procedures, processing flowcharts, configurations, formulas, discoveries, inventions, improvements, concepts, ideas, customer lists, business plans, contacts and other business and technical information, except for such information and data as the parties agree in writing is not proprietary or confidential. Confidential Information shall also include information and materials in the Virtual Services Corporation s possession, custody or control for any other person or entity that the Virtual Services Corporation is obligated to treat as confidential or proprietary. The term Affiliate means any person or entity directly or indirectly controlling, controlled by, or under common control with a Party. 2. The Employee may use Confidential Information only for the benefit of the Virtual Services Corporation and only while Employee is employed to perform services for the Virtual Services Corporation. 3. The Employee agrees to hold in confidence and not disclose, reproduce, distribute, transmit, reverse engineer, decompile, disassemble, or transfer, directly or indirectly, in any form, by any means, or for any purpose, the Confidential Information, or any portion thereof, without the prior written permission of the Virtual Services Corporation. 4. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that: (a) (b) (c) Was publicly available at the time of the Virtual Services Corporation s communication thereof to the Employee; Becomes publicly available through no fault of the Employee subsequent to the time of the Virtual Services Corporation s communication thereof to the Employee; Was in Employee s possession free of any obligation of confidence at the time of the Virtual Services Corporation s communication thereof to the Employee;
provided, however, that the Employee immediately informs the Virtual Services Corporation in writing to establish the Employee s prior possession; (d) (e) (f) Is developed by the Employee independently of and without reference to any of the Virtual Services Corporation's Confidential Information or other information that the Virtual Services Corporation disclosed in confidence to any third party; Is rightfully obtained by the Employee from third parties authorized to make such disclosure without restriction; or Is identified by the Virtual Services Corporation as no longer proprietary or confidential. 5. In the event the Employee is required by law, regulation or court order to disclose any of the Virtual Services Corporation s Confidential Information, the Employee will promptly notify the Virtual Services Corporation in writing prior to making any such disclosure in order to facilitate the Virtual Services Corporation seeking a protective order or other appropriate remedy from the proper authority. Employee agrees to cooperate with the Virtual Services Corporation in seeking such order or other remedy. Employee further agrees that if the Virtual Services Corporation is not successful in precluding the requesting legal body from requiring the disclosure of the Confidential Information, it will furnish only that portion of the Confidential Information, which is legally required and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded the Confidential Information. 6. All Confidential Information disclosed under this Agreement (including information in computer software held in electronic storage media) shall be and remain the property of the Virtual Services Corporation. All such information in tangible form shall be destroyed or returned to the Virtual Services Corporation promptly upon written request or the termination or expiration of this Agreement, and shall not thereafter be retained in any form by the Employee. All Confidential Information in any computer memory or data storage apparatus shall be erased or destroyed. 7. This Agreement shall become effective as of the date first written above and shall automatically expire upon the termination of Employee s employment with the Virtual Services Corporation. Notwithstanding the termination of this Agreement for any reason whatsoever, all of the Employee's non-disclosure obligations pursuant to this Agreement (and the Virtual Services Corporation s rights and remedies with respect thereto) shall survive with respect to any Confidential Information received prior to such expiration or termination. 8. The Employee acknowledges that Confidential Information is unique and valuable, and that disclosure in breach of this Agreement will result in irreparable injury to the Virtual Services Corporation for which monetary damages alone would not be an adequate remedy. Therefore, the Employee agrees that in the event of a breach or threatened breach of confidentiality, the Virtual Services Corporation shall be entitled to specific performance and injunctive relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.