terms and conditions for services (these “Terms”) are the only terms that
govern the provision of services by KONSULTOO , LLC (“Service Provider”) to you
accompanying order confirmation (the “Order Confirmation”) and these Terms
(collectively, this “Agreement”) comprise the entire agreement between the
parties, and supersede all prior or contemporaneous understandings, agreements,
negotiations, representations and warranties, and communications, both written
and oral. In the event of any conflict between these Terms and the Order
Confirmation, these Terms shall govern, unless the Order Confirmation expressly
states that the terms and conditions of the Order Confirmation shall control.
Terms prevail over any of Customer’s general terms and conditions regardless
whether or when Customer has submitted its request for proposal, order, or such
terms. Provision of services to Customer does not constitute acceptance of any
of Customer’s terms and conditions and does not serve to modify or amend these
Provider shall provide the services to Customer as described in the Order
Confirmation (the “Services”) in accordance with these Terms.
hours are not refundable.
(c) Pre-paid hours are lost after 1 years
(d) Developer resource
hours are to be consumed entirely each month
3. Performance Dates. Service Provider shall use
reasonable efforts to meet any performance dates specified in the Order
Confirmation, and any such dates shall be estimates only.
Obligations. Customer shall:
cooperate with Service Provider in all matters relating to the Services and
provide such access to Customer’s premises, and such office accommodation and
other facilities as may reasonably be requested by Service Provider, for the
purposes of performing the Services;
respond promptly to any Service Provider request to provide direction,
information, approvals, authorizations or decisions that are reasonably
necessary for Service Provider to perform Services in accordance with the
requirements of this Agreement;
provide such customer materials or information as Service Provider may
reasonably request to carry out the Services in a timely manner and ensure that
such customer materials or information are complete and accurate in all
material respects; and
obtain and maintain all necessary licenses and consents and comply with all
applicable laws in relation to the Services before the date on which the
Services are to start.
5. Customer’s Acts or
Omissions. If Service Provider’s performance of its obligations under this Agreement
is prevented or delayed by any act or omission of Customer or its agents,
subcontractors, consultants or employees, Service Provider shall not be deemed
in breach of its obligations under this Agreement or otherwise liable for any
costs, charges or losses sustained or incurred by Customer, in each case, to
the extent arising directly or indirectly from such prevention or delay.
6. Change Orders.
either party wishes to change the scope or performance of the Services, it
shall submit details of the requested change to the other party in writing.
Service Provider shall, within a reasonable time after such request, provide a
written estimate to Customer of:
(i) the likely time
required to implement the change;
(ii) any necessary
variations to the fees and other charges for the Services arising from the
(iii) the likely effect
of the change on the Services; and
(iv) any other impact
the change might have on the performance of this Agreement.
Promptly after receipt of the written estimate, the parties shall negotiate and
agree in writing on the terms of such change (a “Change Order”). Neither party
shall be bound by any Change Order unless mutually agreed upon in writing in
accordance with Section 25.
Notwithstanding Section 6(a) and Section 6(b), Service Provider may, from time
to time change the Services without the consent of Customer provided that such
changes do not materially affect the nature or scope of the Services, or the
fees or any performance dates set forth in the Order Confirmation.
Service Provider may charge for the time it spends assessing and documenting a
change request from Customer on a time and materials basis in accordance with
the Order Confirmation.
7. Fees and Expenses;
Payment Terms; Interest on Late Payments.
consideration of the provision of the Services by the Service Provider and the
rights granted to Customer under this Agreement, Customer shall pay the fees
set forth in the Order Confirmation.
Customer agrees to reimburse Service Provider for all reasonable travel and
out-of-pocket expenses incurred by Service Provider in connection with the
performance of the Services.
Customer shall pay all invoiced amounts due to Service Provider within seven (7)
days from the date of Service Provider’s invoice. Customer shall make all
payments hereunder in US dollars by wire transfer, ACH, check or credit/debit
the event payments are not received by Service Provider within seven (7) days
after becoming due, Service Provider may: (i) suspend performance for all
Services until payment has been made in full.
8. Taxes. Customer shall be responsible for all sales, use
and excise taxes, and any other similar taxes, duties and charges of any kind
imposed by any federal, state or local governmental entity on any amounts
payable by Customer hereunder.
Property. All intellectual property rights, including copyrights, patents,
patent disclosures and inventions (whether patentable or not), trademarks
service marks, trade secrets, know-how and other confidential information,
trade dress, trade names, logos, corporate names and domain names, together
with all of the goodwill associated therewith, derivative works and all other
rights (collectively, “Intellectual Property Rights”) in and to all documents,
work product and other materials that are delivered to Customer under this
Agreement or prepared by or on behalf of the Service Provider in the course of
performing the Services, including any items identified as such in the Order
Confirmation (collectively, the “Deliverables”) shall be owned by Service Provider.
Service Provider hereby grants Customer a license to use all Intellectual
Property Rights free of additional charge and on a non-exclusive, worldwide,
non-transferable, non-sublicenseable, fully paid-up, royalty-free and perpetual
basis to the extent necessary to enable Customer to make reasonable use of the
Deliverables and the Services.
non-public, confidential or proprietary information of Service Provider,
including, but not limited to, trade secrets, technology, information
pertaining to business operations and strategies, and information pertaining to
customers, pricing, and marketing (collectively, “Confidential Information”),
disclosed by Service Provider to Customer, whether disclosed orally or disclosed
or accessed in written, electronic or other form or media, and whether or not
marked, designated or otherwise identified as “confidential,” in connection
with the provision of the Services and this Agreement is confidential, and
shall not be disclosed or copied by Customer without the prior written consent
of the Service Provider. Confidential Information does not include information
that is: (i) in the public domain; (ii) known to Customer at
the time of disclosure; or (iii) rightfully obtained by Customer on a
non-confidential basis from a third party.
Customer agrees to use the Confidential Information only to make use of the
Services and Deliverables.
Service Provider shall be entitled to injunctive relief for any violation of
11. Representation and
Service Provider represents and warrants to Customer that it shall perform the
Services using personnel of required skill, experience and qualifications and
in a professional and workmanlike manner in accordance with generally
recognized industry standards for similar services and shall devote adequate
resources to meet its obligations under this Agreement.
Service Provider shall not be liable for a breach of the warranty set forth in
Section 11(a) unless Customer gives written notice of the defective Services,
reasonably described, to Service Provider within ten (10) days of the time when
Customer discovers or ought to have discovered that the Services were
Subject to Section 11(b), Service Provider shall, in its sole discretion, repair
or re-perform such Services (or the defective part)
REMEDIES SET FORTH IN SECTION 11(c) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE
REMEDY AND SERVICE PROVIDER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED
WARRANTY SET FORTH IN SECTION 11(a).
12. Disclaimer of
Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11(A) ABOVE, SERVICE
PROVIDER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING
ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST
INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS
OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR
13. Limitation of
(a) IN NO
EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR
ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR
FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE
DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE)
OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER
OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL
(b) IN NO
EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO
THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED TWO (2) TIMES THE AGGREGATE AMOUNTS
PAID OR PAYABLE TO SERVICE PROVIDER IN THE TWELVE MONTH PERIOD PRECEDING THE
EVENT GIVING RISE TO THE CLAIM.
limitation of liability set forth in Section 13(b) above shall not apply to (i)
liability resulting from Service Provider’s gross negligence or willful
misconduct and (ii) death or bodily injury resulting from Service Provider’s
negligent acts or omissions.
14. Termination. In
addition to any remedies that may be provided under this Agreement, Service
Provider may terminate this Agreement with immediate effect upon written notice
to Customer, if Customer:
to pay any amount when due under this Agreement and such failure continues for
five (5) days after Customer’s receipt of written notice of nonpayment;
not otherwise performed or complied with any of the terms of this Agreement, in
whole or in part; or
becomes insolvent, files a petition for bankruptcy or commences or has
commenced against it proceedings relating to bankruptcy, receivership,
reorganization or assignment for the benefit of creditors.
15. Waiver. No waiver
by Service Provider of any of the provisions of this Agreement is effective
unless explicitly set forth in writing and signed by Service Provider. No
failure to exercise, or delay in exercising, any rights, remedy, power or
privilege arising from this Agreement operates or may be construed as a waiver
thereof. No single or partial exercise of any right, remedy, power or privilege
hereunder precludes any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege.
16. Force Majeure. The
Service Provider shall not be liable or responsible to Customer, nor be deemed
to have defaulted or breached this Agreement, for any failure or delay in
fulfilling or performing any term of this Agreement when and to the extent such
failure or delay is caused by or results from acts or circumstances beyond the
reasonable control of Service Provider including, without limitation, acts of
God, flood, fire, earthquake, explosion, governmental actions, war, invasion or
hostilities (whether war is declared or not), terrorist threats or acts, riot,
or other civil unrest, national emergency, revolution, insurrection, epidemic,
lock-outs, strikes or other labor disputes (whether or not relating to either
party’s workforce), or restraints or delays affecting carriers or inability or
delay in obtaining supplies of adequate or suitable materials, materials or
telecommunication breakdown or power outage, provided that, if the event in
question continues for a continuous period in excess of thirty (30) days,
Customer shall be entitled to give notice in writing to Service Provider to
terminate this Agreement.
Customer shall not assign any of its rights or delegate any of its obligations
under this Agreement without the prior written consent of Service Provider. Any
purported assignment or delegation in violation of this Section is null and
void. No assignment or delegation relieves Customer of any of its obligations
under this Agreement.
18. Relationship of the
Parties. The relationship between the parties is that of independent
contractors. Nothing contained in this Agreement shall be construed as creating
any agency, partnership, joint venture or other form of joint enterprise,
employment or fiduciary relationship between the parties, and neither party
shall have authority to contract for or bind the other party in any manner
19. No Third-Party
Beneficiaries. This Agreement is for the sole benefit of the parties hereto and
their respective successors and permitted assigns and nothing herein, express
or implied, is intended to or shall confer upon any other person or entity any
legal or equitable right, benefit or remedy of any nature whatsoever under or
by reason of these Terms.
20. Governing Law. All
matters arising out of or relating to this Agreement are governed by and
construed in accordance with the internal laws of the State of Florida without
giving effect to any choice or conflict of law provision or rule (whether of
the State of Florida or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than those of the State of
21. Submission to
Jurisdiction. Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled by arbitration administered
by the American Arbitration Association under its Commercial Arbitration Rules,
and judgment on the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof. The place of arbitration shall be Atlanta,
Georgia. The number of arbitrator shall be one.
22. Notices. All
notices, requests, consents, claims, demands, waivers and other communications
hereunder (each, a “Notice”) shall be in writing and addressed to the parties
at the addresses set forth in the Order Confirmation or to such other address
that may be designated by the receiving party in writing. All Notices shall be
delivered by personal delivery, nationally recognized overnight courier (with
all fees pre-paid), facsimile (with confirmation of transmission) or certified
or registered mail (in each case, return receipt requested, postage prepaid).
Except as otherwise provided in this Agreement, a Notice is effective only (a)
upon receipt of the receiving party, and (b) if the party giving the Notice has
complied with the requirements of this Section.
23. Severability. If any term
or provision of this Agreement is invalid, illegal or unenforceable in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other term or provision of this Agreement or invalidate or render
unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms, which by their nature should apply beyond their
terms, will remain in force after any termination or expiration of this
Agreement including, but not limited to, the following provisions: Compliance
with Laws, Confidentiality, Governing Law, Arbitration and Survival.
25. Amendment and
Modification. This Agreement may only be amended or modified in a writing which
specifically states that it amends this Agreement and is signed by an
authorized representative of each party.