PROFESSIONAL SERVICES TERMS AND CONDITIONS
The following “Terms and Conditions” apply to any Services performed by ACCOUNTABILIT, LLC or any of ACCOUNTABILIT’s Affiliates or subcontractors (“AIT”) under each signed Statement of Work (“SOW”) agreed to and signed by a client, as identified in each SOW (the “Client”). Each party above may be referred to as a “Party” or collectively the “Parties” herein. AIT shall have the right to change these Terms and Conditions at any time, and from time to time, and such changes will be effective upon reasonable notice to Client, which may include email or other electronic notification.
STANDARD TERMS AND CONDITIONS
1. Services & Statements of Work. The services covered by these Terms and Conditions (the “T&Cs”) are set forth in one or more Statements of Work (each a “SOW”), together with any exhibits or addendums to the SOW (the “Addendums”), which describes the scope of services, any applicable schedule, and reference these T&Cs (the “Services”). These T&Cs will be a part of any such SOW(s) or Addendum(s). Services will be performed by AIT; Client agrees, however, that AIT, in its sole discretion, may provide the Services through a third-party as necessary.
2. Pricing & Terms of Payment. The price for Services under a SOW will be set forth in each SOW. The fees specified in the SOW are the total fees and charges for the Services and will not be increased during the term of the SOW except as the Parties may agree in a signed Addendum or written electronic (email or otherwise) approval of AIT’s proposed modification.
(a) AIT shall invoice Client on a monthly basis and all terms are net thirty (30) days, unless otherwise specified in the SOW. Failure to pay within specified terms may at the option of AIT result in the suspension of the contract and/or imposition of interest charges at the rate of one percent (1%) per month and may result in the termination of the contract by AIT upon written notice.
(b) All reasonable travel, lodging, car rentals, and meal expenses will be billed to Client unless otherwise specified in the SOW or Addendum.
(c) Any sales and use taxes shall be added to the invoice. In the event Client claims exemption from sales and use taxes, Client must provide AIT with the appropriate tax exemption certificate from the taxing authority
3. Fees & Taxes. Client, at its expense, shall pay, discharge, and be responsible for, all licensee fees, business, sales, use, or other similar taxes or assessments charged or levied by reason of anything performed under these T&Cs, excluding, however, all taxes and assessments applicable to AIT income or applicable to AIT property. If AIT is required to remit any fee, tax, or duty on behalf of or for the account of Client, Client will reimburse AIT within ten (10) days after AIT notifies Client in writing of such remittance.
4. Term & Termination. These T&Cs shall remain in effect from the effective date specified in the SOW through the completion of the Services contemplated in the SOW. Each SOW, with respect to the Services, shall become effective on the effective date specified in the applicable SOW and shall expire on the date that Services are completed thereunder. Either Party may terminate the SOW upon written notice given to the other Party, if the other Party materially breaches the SOW and fails to cure such breach within thirty (30) days following receipt of notice describing the breach. Upon any termination for material breach, Client shall be liable only for payment for the Services rendered through the termination date.
5. Proprietary Rights. AIT has and will retain sole and exclusive right, title and interest in and to all AIT Confidential Information. Except for any deliverables as set forth in a SOW, AIT does not convey or transfer nor does Client obtain any right or interest in any of the proprietary software, systems, data, methodology, techniques, software libraries, tools, algorithms, materials, products, ideas, skills, designs, processes, procedures, know-how or other intellectual property owned by AIT (or its licensors) utilized or provided by AIT in connection with the performance of the Services (“AIT Property”). AIT grants to Client a perpetual, royalty-free, worldwide right to use the AIT Property imbedded in the Services or deliverables. Client agrees that all proprietary rights to the AIT Property, including patent, copyright, trademark and trade secret rights, are AIT’s sole and exclusive property, free from any claim or retention of rights on Client’s part, and Client hereby assigns to AIT any rights Client may have in any of the foregoing.
Client has and will retain sole and exclusive right, title and interest in and to all Client Confidential Information and Client Assets, Client’s customer data, and Client’s customer account information, including any and all intellectual property rights therein. Unless expressly stated otherwise in a SOW, Client shall retain all right, title and interest in and to all deliverables, work product, designs, methodologies, processes, techniques, ideas, concepts, designs, tools, trade secrets and know-how, and any modifications, improvements or derivative works of the foregoing resulting from or used in providing the Services hereunder, excluding any and all AIT Property embedded or incorporated in the foregoing items.
6. Client Representations. Client represents and warrants to AIT as follows:
(a) that Client has the right to authorize AIT to perform the Services which are or become subject to these T&Cs; and
(b) that it has all rights necessary in the data, materials, software and hardware as reasonably required for AIT to perform the Services (“Client Assets”) to provide them to AIT for such purpose.
7. Client Responsibilities. Client, at its expense, shall:
(a) Allow AIT reasonable access, as necessary, to the premises and facilities where the Service are to be provided, and Client shall not require AIT’s personnel to sign any document that has not been approved in advance by AIT;
(b) Provide AIT with access to the Client Assets and hereby grants AIT a limited right to use such Client Assets solely for the purpose of performing Services hereunder;
(c) Provide safe, suitable (including environmental conditions), and easily accessible floor space at the premises and facilities where the Service are to be provided;
(d) Provide reasonable assistance to AIT and access to Client personnel by AIT as requested;
(e) Provide access to third-party providers of maintenance services, as needed;
(f) Work in good faith with AIT to implement any purchases or changes as identified in performance of the Services;
(g) Be and remain responsible for the quality, completeness, and workmanship of any item or service furnished by Client and shall ensure the materials provided to AIT do not infringe or violate any third party’s rights;
(h) Use the Services only on or with equipment and software recommended by Client, or the applicable manufacturers and software providers; and
(i) Maintain adequate backup for all data and other items furnished to AIT.
AIT personnel shall comply with the reasonable written rules and regulations of Client related to use of its premises and facilities, provided that such written rules and regulations are provided to AIT prior to commencement of the Services.
Upon any failure of Client to comply with the responsibilities set forth in this Section 7 ( each a “Non-compliance”), AIT may, at its option, refuse to perform any Services where Non-compliance has occurred until such Non-compliance has been cured to the reasonable satisfaction of AIT without any liability or obligation under these T&Cs, any SOW, any Addendum, or any applicable law; provided further, that AIT may charge Client at its then current labor rates for any idle time that was consumed as a result of Non-compliance.
If AIT is required to install or replicate Client software as part of the Services, Client shall independently verify that all software is properly licensed. Client’s act of providing any software to AIT will be deemed an affirmative acknowledgment to AIT that Client has a valid license that permits AIT to perform the Services. Unless expressly agreed to in a SOW or Addendum, Client shall monitor its equipment for the installation of unlicensed software. Client shall indemnify AIT against all damages and expenses AIT may incur (including reasonable attorneys’ fees and disbursements) related to Client providing infringing materials to AIT or Client breach of this Section.
8. Confidentiality. Each Party (“Receiving Party”) understands and acknowledges that the other Party may, from time to time, disclose “Confidential Information” (“Disclosing Party”) to Receiving Party. For purposes of these T&Cs, the term “Confidential Information” shall mean any nonpublic and/or proprietary information or materials relating to Disclosing Party’s business, including but not limited to proprietary ideas, concepts, expertise, methodologies, and technologies developed by Disclosing Party, documentation, reports, memoranda, notes, drawings, plans, papers, recordings, data, designs, materials, financial data, or other forms of records or information relating to Disclosing Party’s business operations, or any information which Disclosing Party marks or identifies as “confidential” at the time of disclosure or confirms in writing as confidential within a reasonable time (not to exceed thirty (30) days) after disclosure. Receiving Party agrees (i) not to use Disclosing Party’s Confidential Information for its own use or for any purpose other than the specific purpose contemplated under these T&Cs (ii) not to voluntarily disclose Disclosing Party’s Confidential Information to any other person or entity; and (iii) to take all reasonable measures to protect the secrecy of, and avoid disclosure or use of, Disclosing Party’s Confidential Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have such Confidential Information. In no event shall Receiving Party use Disclosing Party’s Confidential Information to reverse engineer or otherwise develop products or services functionally equivalent to the products or services of Disclosing Party.
The following shall not be considered Confidential Information for purposes of these T&Cs: (a) information which is or becomes in the public domain through no fault or act of the Receiving Party; (b) information which was independently developed by the Receiving Party without the use of, reference to, or reliance on Disclosing Party’s Confidential Information; (c) information which was provided to the Receiving Party by a third party under no duty of confidentiality to the Disclosing Party; or (d) information which is required to be disclosed by law with no further obligation of confidentiality, provided, however, prompt prior notice thereof shall be given to the Party whose Confidential Information is involved.
The Parties agree that the disclosure of any of the foregoing Confidential Information by either Party may give rise to irreparable injury to the owner of the Confidential Information, inadequately compensable in monetary damages. Accordingly, the owner of the Confidential Information may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available.
9. Limited Warranty. AIT shall provide the Services in a professional and workmanlike manner consistent with current industry standards, and that such Services shall, for a period of sixty (60) days following completion, conform to the specifications in the applicable SOW. The foregoing limited warranty is contingent upon Client fulfilling the Client Responsibilities set forth above and any other conditions that may be specified in the applicable SOW. Any and all completion schedules provided by AIT are estimates and are provided for planning purposes only.
In the event Client finds any Services provided hereunder to be defective or nonconforming during the warranty period, subject to the limitations set forth above, AIT shall promptly exercise commercially reasonable efforts to re-perform the identified nonconforming Services in accordance with the specifications set forth in the SOW. If AIT concludes that re-performance of the non-conforming Services is impracticable, then AIT shall refund the fees allocable to those nonconforming Services paid by Client to AIT. The foregoing constitutes Client’s sole remedy for warranty claims relating to the Services.
To the extent AIT is supplying third-party hardware or software as part of the Services, such hardware and software shall be provided with the manufacturers’ or publishers’ standard end-user warranties, if any. AIT makes no independent warranties with regards to such third-party hardware or software.
10. Disclaimer of Warranties. WITH THE EXCEPTION OF THE LIMITED WARRANTY EXPRESSLY SET FORTH IN THESE T&CS, AIT DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED UNDER LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AIT DOES NOT PROMISE THAT THE PRODUCTS OR SERVICES PROVIDED WILL BE ERROR-FREE OR THAT CLIENT’S COMPUTER PRODUCTS, HARDWARE, OR SOFTWARE WILL OPERATE WITHOUT INTERRUPTION.
11. Limitation of Liability. AIT will not under any circumstances be liable for any special, indirect, incidental, or consequential damages including but not limited to, property damage, business interruption, loss of profit or savings, lost time, loss of data, loss of use of any such equipment, cost of procurement of substitute products, technology or services, or any other damages in connection with these T&Cs, a SOW, or an Addendum. Notwithstanding anything to the contrary in these T&Cs, AIT’s liability for damages resulting from any cause whatsoever in connection with these T&Cs, a SOW, or an Addendum, shall not exceed the actual fees paid to AIT by Client for the Services under the applicable SOW or Addendum in question. AIT shall not be responsible for damages caused by (i) accidents, misuse, misapplication, or neglect of Client or any of its agents or employees or as result of services by any person other than AIT. THESE LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY UNDER THESE T&CS, A SOW, OR AN ADDENDUM AND WILL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY SPECIFIED REMEDIES. AIT is willing to enter into these T&Cs and each SOW (and any Addendum) and perform Services for Client only in consideration of and in reliance upon the provisions of these T&Cs limiting AIT’s exposure to liability, including but not limited to the provisions contained above. Such provisions constitute an essential part of the bargain underlying these T&Cs and each SOW (and any Addendum) and have been reflected in the consideration specified therein.
12. Transmission Disclaimer. AIT does not and cannot control the flow of data over the Internet or the integrity of the Internet (the global system of interconnected computer networks). Therefore, AIT disclaims all liability for loss of data, corruption of data, or inability to provide Services, as a result of disruptions, slowdowns, breakdowns, or other technical issues affecting the Internet.
13. Personal Information. AIT shall, with the receipt, storage, use and/or transfer of Personal Information, (a) at all times maintain the confidentiality of Personal Information provided to AIT or otherwise disclosed to AIT in connection with the provisions of Services, and (b) maintain appropriate security measures that are in compliance with data protection regulations promulgated under applicable state and federal laws of the United States. For the purposes of this section “Personal Information” means the first and last name or first initial and last name of an individual together with one or more of the following relating to such individual: (i) Social Security number; (ii) driver’s license number/state-issued identification number; or (iii) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number, or password, that would permit access to the account.
14. Non-Solicitation. Client shall not, directly or indirectly, solicit, hire, or contract with any officers, employees, subcontractors or agents of AIT (“Personnel”) during the term hereof and until eighteen (18) months after the earlier of: (a) the termination of such Personnel’s engagement; and (b) the termination of these T&Cs, unless explicitly agreed to in writing by the Parties. No offer or other form of solicitation of employment will be made at any time when the employment of such Personnel is prohibited by these T&Cs. Should Client solicit any Personnel for employment in violation of this Section and should that individual subsequently become an employee of Client, Client agrees to reimburse AIT an amount equal to the salary and commissions, if any, earned or the revenue produced by the individual during the last twelve (12) months while engaged by AIT. Both Parties agree that this amount represents reasonable compensation to AIT and does not constitute a penalty. Such amount will be due and payable by Client within ten (10) days of receipt of written demand from AIT. Nothing herein shall prevent an employee of AIT from responding to an employment advertisement or announcement of general circulation made by Client. The intention of this Section is to prohibit the active recruitment of Personnel.
15. Notices. Any notice under these T&Cs or any SOW shall be sufficiently given if delivered via electronic mail (email), in person or, by overnight courier of national reputation or, by registered or certified mail, postage prepaid, and addressed to the recipient Party at the known email or physical address of such Party, or such other address as may be furnished in writing by any such Party, to the attention of the “Legal Department”. Such notice shall, if properly addressed, be deemed to have been given as of the date emailed, delivered in person or sent, or one day after deposit with an overnight courier or four (4) business days after deposit into the US mail.
16. Independent Contractor. The Parties enter into these T&Cs as independent contractors and nothing within these T&Cs shall be construed to create a joint venture, partnership, agency, or other employment relationship between the Parties. Each Party shall be solely responsible for payment of all compensation owed to its employees, including all applicable federal, state and local employment taxes, as well as workers’ compensation, and all other employment benefits and will make deductions for all taxes and withholdings required by law. In no event will any Party employee be eligible for or entitled to any benefits of the other Party.
17. Force Majeure. Neither Party shall be liable for any failure, inability or delay to perform hereunder (except the payment of money), if such failure, inability or delay is due to circumstances beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, strike, lockout, labor disturbance, social conflict, fire, explosion, earthquake or sabotage.
18. Governing Law and Dispute Resolution. These T&Cs shall be governed by and construed under the laws of the State of Arizona, exclusive of its choice of law rules, as such law applies to agreements between Arizona residents entered into and to be performed within Arizona, except as governed by federal law. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these T&Cs. The Parties shall attempt in good faith to resolve any dispute arising out of or relating to these T&Cs or any SOW within a reasonable period by negotiation between executives who have authority to settle the controversy. In the event such negotiation is unsuccessful, any controversy or claim arising out of or in any way connected with these T&Cs or any SOW, or the alleged breach thereof, shall be brought in the state or federal courts located in the State of Arizona. Each Party waives any right it may have to assert the doctrine of forum non-conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph. The prevailing party in any litigation shall be entitled to recover its reasonable attorneys’ fees and related costs.
19. Entire Agreement. These T&Cs, together with any applicable SOW(s) and Addendum(s) executed by the Parties constitute the entire agreement between the Parties, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment or waiver of any provision of these T&Cs shall be effective. If any provision of these Terms and Conditions is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable.
20. Severability. In the event any term or provision of these T&Cs is determined to be invalid, illegal, or unenforceable, the remaining terms and provisions will continue in full force and effect if the essential terms and conditions of these T&Cs for each Party remain valid, binding, and enforceable.
21. Headings and Interpretations. The headings of the Sections of these T&Cs are intended solely for convenience or reference, and shall be given no effect in the construction or interpretation of these T&Cs. The use of the singular shall be deemed to include the plural and vice versa.
22. Foreign Client. If Client is located in a country other than the United States, the following terms apply to Client: (a) if the laws of the country in which Client is located require that contracts be in the local language in order to be enforceable, the version of these T&Cs that shall govern is the translated version in the local language that is produced by AIT within a reasonable time following Client’s written request to AIT; and (b) Section 18 above will not apply, and instead the following shall apply: These T&Cs shall be governed by and construed by the laws of England and Wales and the Parties agree to submit to the exclusive jurisdiction of the English Courts.