I. Contracting Parties
Client and Company have entered into a contract for services pursuant to the attached Services Agreement. The contract is made up of the services agreement, proposal, scope of work, change request, or other such engagement agreements, quotes or estimates accepted, appendices, and exhibits (“Services Agreement”), and these general terms and conditions (“Terms and Conditions”) set forth herein (the terms of such Services Agreement and these Terms and Conditions are hereinafter collectively referred to as the “Agreement”). These Terms and Conditions are incorporated within and are part of the applicable Services Agreement. Client acknowledges that in the event of and only to the extent of any inconsistencies between these Terms and Conditions and the Services Agreement, the provisions of the Services Agreement will govern. Capitalized but undefined terms will have the meanings ascribed to them in the Services Agreement.
II. Term, Invoicing and Payment
The Initial Term and optional Renewal Terms are as stated in the Service Agreement. If not expressly stated, the term will be 12 months and will automatically renew for successive terms, unless notified 60 days in advance and will be effective on the first day of the month.
Rates are subject to annual increase of 5% or the current CPI Index whichever is greater.
Company will invoice Client for Services as provided in the Services Agreement. One-time setup fees are non-refundable once setup is complete. Invoices are due and payable net 30 days from receipt of invoice. Payment may be made by check, ACH or credit card. Credit card payments incur a 3% convenience fee. Client may dispute any invoice by notifying Company (email acceptable) prior to the due date of such invoice. If payment of any undisputed amounts is not remitted by the due date, Acumen will notify Client in writing and Client will have up to thirty (30) days to cure the payment default. Client will not be deemed in default for withholding any portion of an invoice that is disputed by Client, provided, such dispute must be reasonable. The parties will work in good faith to resolve all disputes within thirty (30) days from Client’s notice. Any invoice or part thereof that is not under dispute and which remains unpaid after thirty (30) days from the last day of the cure period will be assessed a late fee of $50 and will accrue interest at a rate of one and one-half percent (1 ½ %) per month. Accounts with outstanding balances will be subject to termination of services. Company reserves the right to apply payments in its sole discretion to past due invoices. In the event Client does not have an approved credit account with Company, Company may require payment by cashier’s check or credit card.
A re-activation fee equivalent to one (1) months’ service fees will be charged if service is cancelled or suspended due to any reason.
Client will bear all applicable federal, state, municipal and other governmental taxes (such as sales, use and similar taxes), as well as import or customs duties, license fees and similar charges, however designated or levied on the services rendered or on the sale of equipment or products (or the delivery thereof) or measured by the purchase price paid for the products or services. Exemption certificates must be presented prior to shipment or installation to be honored.
III. Termination and Remedies
Either party may terminate recurring Services for convenience as provided in the Services Agreement, or if not expressly provided in the Services Agreement, then upon not less than 90 days’ notice to the other Party, provided, that one-time implementation Services may not be terminated by Acumen once it has commenced providing such Services to Client. Either Party may terminate Services if the other Party has breached any of its obligations under the applicable Services Agreement and has failed to cure the breach within sixty (60) days of written notice from the other Party. Violation of SLA is not considered breach of contract subject to termination for cause. In the event of termination by Client for convenience, Client is obligated to pay the amount of Recurring Monthly Fees that Client would otherwise have paid to Acumen through the then current Initial Term or Renewal Term, and any preapproved expenses. In the event of termination by Company for convenience, or by Client for cause or convenience, Company will provide Client with transition services to enable Client to transition to an alternative services provider, have access to all Client data, be provided copies of Client data in the form reasonably requested by Client or in the same form initially received, and as reasonably necessary to avoid interruption to Client’s normal business operations as a result of such termination (the “Transition Services”). Transition Services will be provided at no additional cost to Client if termination is by Client for cause or by Company for convenience, and up to a period of sixty (60) days. If termination is by Company for cause, the Transition Services will be provided for up to ten (10) days from termination and Client will be charged the hourly rates then in effect under Client’s Services Agreement. If either party terminates this Agreement for cause or for convenience, both parties will fully cooperate in the orderly and timely termination of Services, and Transition Services.
By the last day of the Transition Services, Client agrees to remove and return all Company owned products and software related to the services from Client’s devices or otherwise render them permanently unusable, as directed by Company. Client agrees to return or destroy any and all Company documentation, products, and software received related to the Services.
This Agreement will be deemed terminated for cause if either party fails to cure any material breach of this Agreement within sixty (60) days after receiving written notice of such breach, or, if the non-breaching party as approved an extended cure period, if the breaching party has failed to demonstrate to the non-breaching party that it is diligently working on curing the breach during the extended cure period. If Client terminates this Agreement for cause in accordance with this Section, Company will refund to Client any Recurring Monthly Fees paid in advance by Client for Services not rendered to Client under the affected Services Agreement. Other than as may be provided elsewhere in this Agreement, such termination will be Client’s sole and exclusive remedy in case of a material breach of this Agreement by Company.
Client will provide Company access to that location at Client’s premises where the Company equipment is located in order to allow Company to remove Company equipment, and will hold Company completely harmless from entering that location and from taking such action, unless Company causes damage to Client’s property or harm to any persons during the course of removing the Company equipment. Company may in its sole discretion delete all Client data, information, files and programs stored on Company’s servers or system after the Transition Services. Company will have no obligation to retain copies of Client data or files on Company’s system following Client’s termination. Company will have no continuing obligation to deliver or provide products and services upon termination.
Upon Client default without cure, Company may, in its sole discretion and without notice, terminate all services, remove Company owned software and equipment, take possession of all or part of the Company owned software and equipment, and delete Client data, information, files, and programs stored on Company’s servers or system. Client agrees to immediately return or destroy any and all documentation, products, and software received related to the services. Client acknowledges that this may leave its computers and other equipment without adequate systems for updates to operating systems, software, and virus scanning programs. Company will not be held responsible for any damages or consequences resulting from the removal of software, equipment, data, information, files, programs, or termination of services.
Removal of the equipment or deletion of files does not relieve Client of the obligations under this Agreement, including payment in full.
In the event Company incurs any cost or expense to enforce or interpret its rights under the terms of this Agreement, whether or not Company will commence legal proceedings, Client agrees to pay all such costs and expenses, including but not limited to all reasonable attorney’s fees incurred by Company.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, COMPANY MAKES NO WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR NON-INFRINGEMENT. COMPANY DISCLAIMS, TO THE EXTENT PERMITTED BY LAW, ALL WARRANTIES AND ANY LIABILITY, INCLUDING THOSE BY THIRD PARTY SUPPLIERS INVOLVED IN DELIVERY OF EQUIPMENT SERVICES FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE EQUIPMENT OR THE SERVICES.
IV. Product Sales, Returns, Warranties, and Security Interest
The following terms and conditions apply to original equipment from the manufacturer and third-party equipment and software products purchased by Company for and on behalf of Client that are resold to Client and become the property of Client.
Company will provide the applicable documentation and third party vendor agreements to Client at the time of purchase and/or provide Client with working links to the third party vendors’ online agreements. Client will comply with and will not act to contravene, applicable laws, codes, and regulations, including without limitation those relating to the licensing/control of, or prohibition gains, shipment (including both export and re-export) to designated countries and / or entities.
All warranties and product support are provided by the original third party provider (i.e., software licensor and/or original equipment manufacturer (“OEM”)). Company hereby passes through to Client all representations, warranties, indemnities, and remedies provided by each software licensor and OEM to the users of the equipment as set forth in the applicable OEM agreement. . Company makes no representations or warranties of any kind with respect to OEM equipment. WITH RESPECT TO OEM EQUIPMENT, COMPANY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO SUCH OEM EQUIPMENT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY WILL NOT BE LIABLE FOR ANY DAMAGE, LOSS, COST OR EXPENSE FOR BREACH OF OEM EQUIPMENT WARRANTY. The right to return defective products, as previously described, will constitute Company’s sole liability to Client and Client’s exclusive remedy from Company in connection with any claim of any kind relating to quality, condition or performance of any OEM equipment, whether such claim is based upon principles of contract, warranty, negligence or other tort, breach of any statutory duty, principles of indemnity or contribution, the failure for any limited or exclusive remedy to achieve its essential purpose or otherwise. In the event Company issues a return authorization to Client allowing Client to return equipment or product to Company, Client will deliver goods to Company’s address at Client’s cost. Under no circumstances does the foregoing limit Client’s rights and remedies from the OEM under the applicable OEM agreements or Company’s obligations to pass through all such rights and remedies to Client.
Until such time as Client has paid the agreed purchase price, Company hereby retains, and Client hereby grants a purchase money security interest in any equipment described in the Services Agreement. In connection therewith, Client agrees to execute all instruments (including financial statements) deemed necessary by Company under applicable law to establish, maintain and continue perfected Company’s purchase money security interest in the equipment or otherwise protect its rights in and to said equipment. Company will take all necessary actions to promptly release the foregoing purchase money security interest and any other liens filed against Client upon payment of the purchase price by Client.
V. Ownership of Intellectual Property
Company represents and warrants that (a) it has all necessary right, power and ability to execute this Agreement and to perform its obligations herein, (b) its employees, subcontractors, or agents assigned to perform the Services have the skills, training, and background reasonably commensurate with their level of performance or responsibility; (c) it will perform the Services in a professional, workmanlike manner, consistent with industry standards, (d) it will use its best efforts to perform on time and in accordance with the terms of the applicable Services Agreement, and (v) it will comply and ensure its employees, subcontractors and agents comply with all applicable laws, including applicable privacy laws.
VI. Ownership of Intellectual Property
Company will assign to Client the right, title and interest, including, without limitation, Client owned trademarks and copyrights, in and to the Deliverables. The term “Deliverables” includes all work created by Company for hire by Client, and includes data, modules, components, designs, utilities, subsets, objects, program listings, and specifications. Deliverables does not include Company tools, models, methodologies, programs, systems, analysis frameworks, leading practices, trade secrets and proprietary rights including data, modules, components, designs, utilities, subsets, objects, program listings, and specifications, owned or developed by Company prior to, or independently from, its engagement by Client (“Technical Elements“) and any third party works and products (“Supplier’s Technical Elements”) and any modifications or enhancements to Supplier’s Technical Elements developed in the course of performing the Services (collectively, “Company Technical Elements”), whether or not embedded in the Deliverables. Company retains exclusive ownership rights to all Company Technical Elements. Accordingly, to the extent that any Company Technical Elements are integrated into any Deliverables, Company grants to Client a perpetual, worldwide, non-exclusive, limited license to use and modify such Company Technical Elements as integrated into such Deliverables for Client purposes only. Notwithstanding anything to the contrary in this Section, where Company utilizes a third-party software vendor to provide Services, Client’s rights to any materials developed by such third party will be subject to the terms of any software license of such third party. Notwithstanding anything to the contrary contained herein, Company retains all rights and license to its knowledge, experience and know-how (including processes, ideas, concepts and techniques) acquired or developed by Company prior to, or in the course of performing the services for Client, but independently from its engagement hereunder (“Company knowledge, experience and know-how”).
Company and Client both acknowledge that in the course of this Agreement, each party may have access to the other’s Confidential Information. “Confidential Information,” as used in this Agreement, means information not known to the public, in written, oral or any other form, that a party designates as being confidential or that, under the circumstances surrounding disclosure, should be clear that it is confidential. Confidential Information includes trade secrets, consisting of formulas, patterns, devises, processes, and compilations of information, specifications, records, customer information, vendor and sub-contractor information, and all files, records, documents, drawings, specifications, equipment, and similar items relating to the business of the parties, whether they are prepared by Company or Client or come into either party’s possession in any other way, are and will remain the exclusive property of such party’s business and will not be removed from the premises of such party under any circumstances whatsoever without the prior written consent of such party. The parties will not misuse, misappropriate, or disclose any of the Confidential Information described herein, directly or indirectly, or use them in any way, either during the term of this Agreement or at any time thereafter.
Each party will take all necessary steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, and in any event each party will exercise the same prudent practice in preserving this information as it does to preserve its own Confidential Information.
The foregoing obligations will not restrict either party from disclosing the other party’s Confidential Information or the terms and conditions of this Agreement pursuant to the order or requirement of a court or other governmental body, provided that the party required to make such disclosure gives prompt notice to the other party to enable it to contest such order or requirement. Furthermore, Company reserves the right to monitor any and all communications through or with our facilities for the purposes of the ECPA requirements.
VIII. Non-Solicitation of Employees
Neither Party will solicit or offer employment to the respective employee(s) or sub-contractor(s) of the other, whether directly or indirectly, during the term of this Agreement or within 1 year of termination of Agreement, or during their employment or within 1 year of termination of their employment, except with the prior written approval in each case.
Our professionals represent our team of skilled professionals and in the event you wish them converted to your employ or any subsidiary or related party of yours or another employer to whom you refer them, you agree to pay a conversion fee regardless of the employment classification.
The conversion fee will equal 35% of the professional’s aggregate annual compensation, including bonuses. The conversion fee is owed and invoiced upon your hiring of our professional, and payment is due upon receipt of invoice. The same calculation will be used if you convert our professional on a part-time basis, using the full-time equivalent annual compensation.
IX. Indemnification and Limitation of Liability
Each Party (as the “Indemnifying Party”) agrees to indemnify and hold the other Party (and the “Indemnitee”) harmless from any costs, demands, claims, damages, losses, and costs of defense including reasonable attorney’s fees (collectively, “Losses”) incurred by the Indemnitee as a result of (a) any breach by the Indemnifying Party of any covenant, warranty, or representation made by the Indemnifying Party hereunder, including the representations and warranties herein, (b) a claim by any third party that the Indemnifying Party’s intellectual property (i.e., Company Technical Elements or Client data, as applicable) infringes or constitutes a misappropriation of the intellectual property of such third party claimant, or (c) the Indemnifying Party’s gross negligence or willful misconduct.
Client is and will remain solely responsible for complying with all laws, rules and regulations regarding the management and administration of its information management systems, including but not limited to, obtaining any consent and/or acknowledgement from its employees and service providers (if applicable). Client agrees to indemnify and hold Company harmless from any Losses incurred by Company as the result of Client’s breach of these responsibilities. Client acknowledges and agrees that Company’s responsibilities and liability do not extend to the internal management of Client’s information policies and that Company is merely a data-processor and does not control and is not responsible for the management, administration, or security of Client’s content or policies.
Company must, when accessing or using Client’s operating systems, applications, or Client data, (a) comply with all applicable data privacy, cybersecurity, and data protection laws, (b) implement and enforce personnel policies which protect the Client data and systems from unauthorized use or disclosure, and (c) use state of the art level technology that is known and recognized by industry leaders as protective against malicious code, malware, bots, viruses, or other such code, device or mechanism designed to restrict, disable, damage or destroy Client’s systems or Client data. Company agrees to indemnify and hold Client harmless from any Losses incurred by Client as the result of Company’s breach of these responsibilities.
Client agrees to adhere to system policies as published or provided by Company including restrictions on Services available with each account type, restrictions on certain features, and all other policies designed to protect and enhance the quality and reliability of Services provided by Company. Client agrees to abide by any and all future Company policy decisions.
Expressly excluding damages arising from a breach by either Party of its confidentiality obligations, or security obligations, neither Party will be liable to the other Party or any other person or entity for any damages (punitive, incidental, special, exemplary, indirect or consequential) arising from the provision, use or inability to use the Services provided by Company to Client, or arising from or related to the engagement of Company, whether based in contract, tort (including negligence), intended conduct or otherwise even if the Party subject to the damages has been advised of the possibility of such potential damages, including without limitation: expenses; lost profits, savings, income, goodwill, revenue or prospective compensation.. Additionally, expressly excluding damages arising from a breach by either Party of its confidentiality obligations, a Party’s indemnification obligations to the other Party, or breach of security obligations, neither Party’s total liability to the other Party for direct damages arising under this Agreement will exceed an aggregate amount equal to the monthly recurring fees paid by Client to Company during the twelve (12) months immediately preceding the event giving rise to the damage.
Company will not be liable to Client or any other person or entity for acts of God, fire, disaster, national security, or other circumstances outside of Company’s control.
X. Governing Law
The terms of the Agreement are governed by the laws of the State of Missouri. Any action at law or in equity to enforce or interpret the Agreement will be brought in the Circuit Court for the County of St. Louis, State of Missouri.
All notices required to be sent under this Agreement must be in writing and delivered in person or sent to the names and addresses of the parties as referenced in the Services Agreement or otherwise provided in writing. Notices are deemed to have been given upon (i) the date actually delivered in person, (ii) the date transmitted via email or fax with confirmation of receipt (iii) the day after the date sent by overnight courier with confirmation receipt or (iv) 3 days following the date such notice was mailed by first class mail certified with return receipt.