GENERAL TERMS AND CONDITIONS
Software Implementation Consultancy and
Technical and Functional Support Services
These GENERAL TERMS AND CONDITIONS, (“Terms and Conditions”) is entered into by and between:
1) PRAGM4TIC LLC , a Florida limited liability company (“PRAGM4TIC”) having its principal place of business at 12724 GRAN BAY PARKWAY WEST, 410, JACKSONVILLE, FL 32258, on one part, and
2) THE CLIENT , a business entity organized and existing
PRAGM4TIC and CLIENT each shall be referred to as a “Party” or collectively as “Parties” as the context may require.
W I T N E S S E T H
WHEREAS , PRAGM4TIC is in the business of providing Software Deployment and Implementation, Technical Support Services and other related services (the “Services”); and
WHEREAS, PRAGM4TIC represents that it has the necessary personnel, expertise and experience to provide the Services to CLIENT; and
WHEREAS, PRAGM4TIC and CLIENT desire to adopt these Terms and Conditions to provide the terms and conditions upon which CLIENT may engage PRAGM4TIC, from time to time and as agreed to by both Parties, to provide Services for individual projects in accordance with mutually agreed terms.
NOW THEREFORE, for and in consideration of the mutual covenants and agreements set forth hereinafter and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto do hereby agree as follows:
ARTICLE 1
SCOPE OF THIS AGREEMENT
1. Scope. This Terms and Conditions sets forth the general terms and conditions that shall apply to all Services that shall be subject of one or more SO’s, as defined below, that shall be entered pursuant to these Terms and Conditions. In no event shall these Terms and Conditions, or the rendering of the Services, be deemed to be an agreement for the sale of goods.
2. Individual Service Orders. The specific duties and responsibilities for each project under these Terms and Conditions shall be separately negotiated and specified in a Service Order on terms and in a format mutually agreed upon and executed by the Parties (each such writing, a “SO.”)
3. Contents of a SO. Every SO shall be executed by the Parties, may make reference to these Terms and Conditions and may , among other, include the following minimum information:
a) the date of the SO;
b) a SO number;
c) the scope and specifications of the project and the Services to be rendered;
d) deliverables and estimated timelines;
e) any performance metrics;
f) the name of the CLIENT Project Manager, or IT Liaison, as defined below;
g) estimated dates for the commencement and completion of the Services;
h) any special terms, if any, and conditions agreed upon by the Parties with respect to the SO;
i) compensation, fees, rates payable and payment schedule, unless the SO is being placed under a pre-paid package of hours or placed under an hours-on-demand scheme as set forth in these Terms and Conditions;
j) equipment or other assets required, if any; and
k) additional authorized expenses.
4. Execution of SO’s. A SO shall be effective and binding upon the Parties’ approval.
5. This Terms and Conditions Controls the SO’s. Any and all SO’s issued and executed pursuant to these Terms and Conditions will be made part hereof, are incorporated herein by reference, and shall be subject to the terms and conditions set forth in these Terms and Conditions, without prejudice of the provisions of the Article captioned “Construction of Terms and Conditions.”
ARTICLE 2
PROJECT IMPLEMENTATION
1. Individual SO’s. Prior to PRAGM4TIC’s commencement of Services hereunder, the Parties shall execute one or more SO’s. CLIENT’s approval of a SO will be deemed its authorization for PRAGM4TIC to proceed under the terms and conditions of these Terms and Conditions and the SO.
2. Extent of SO’s. Amendment to SO’s. The Parties understand that PRAGM4TIC shall use commercially reasonable efforts to initiate, conduct and complete the Services as set forth in a SO in a timely fashion. CLIENT understands and agrees that completing the Services as set forth in a SO requires the full cooperation of CLIENT. PRAGM4TIC shall use commercially reasonable efforts to anticipate the scope of activities necessary to complete Services established by a SO. However, SO’s constitute both Parties’ informed estimate of those Services necessary to satisfactorily complete a Project and are based upon the Parties’ then-current understanding and knowledge of the relevant facts, as well as the regulatory environment. In the event of changes affecting such understanding, knowledge and environment, the Parties agree to enter into good faith negotiations regarding the possibility of amending applicable terms under a SO to address said changes. Any amendment to a SO shall be in writing and approved by the authorized representatives of each party and shall constitute a formal modification to and become a part of the SO.
3. SO as Separate Agreements. Each SO issued under these Terms and Conditions shall be deemed to be a separate and independent agreement between CLIENT and PRAGM4TIC which incorporates by reference these Terms and Conditions. In the event of a conflict between these Terms and Conditions and the terms of a SO, the terms and conditions of the SO shall prevail.
4. Worksite. PRAGM4TIC may render the Services within its own facilities, either located in the State of Florida, or elsewhere, as well as within CLIENT’s offices facilities. In such latter event, CLIENT shall not charge PRAGM4TIC for office space and basic office equipment including furniture, telephone, facsimile, photocopier, and computer terminal equipment for PRAGM4TIC’s staff deployed onsite pursuant any SO. PRAGM4TIC shall comply with CLIENT’s Policies relating to physical security procedures in place at CLIENT’s premises, and PRAGM4TIC shall adapt itself to CLIENT’s working hours, rules and holiday schedule. PRAGM4TIC, at its discretion, may also render the Services by means of remote access, and remote communication means.
5. CLIENT’s Project Manager or IT Liaison. CLIENT may appoint (whether within the terms of a SO or thereafter) an CLIENT employee (a "Project Manager” or “IT Liaison") to manage, oversee and serve as a liaison with PRAGM4TIC with respect to the Services under one or more SO’s. The IT Liaison shall be responsible for administering the SO for CLIENT and for coordinating all activities with PRAGM4TIC’s personnel relating to the performance of the Services.
ARTICLE 3
PERFORMANCE STANDARDS
1. PRAGM4TIC’s Personnel. Performance Standards. In selecting employees to provide the Services under these Terms and Conditions, PRAGM4TIC shall select only those persons who are qualified by the necessary education, training and experience to provide high quality performance of the particular Services for which each such employee is responsible. PRAGM4TIC shall complete all Services in a professional manner and to the reasonable satisfaction of CLIENT.
PRAGM4TIC’s personnel shall exercise the degree of skill and care required by accepted professional standards in PRAGM4TIC’s field.
2. Deadlines and Review Meetings. PRAGM4TIC shall employ all reasonable efforts to meet CLIENT’s assignment deadlines. Unless otherwise agreed upon, PRAGM4TIC shall meet (either in person or by video conferencing means) with CLIENT personnel on a regular basis to discuss and review the progress of the Services, and to report on work in progress and deliver completed work.
3. Deliverables. Upon the specific written terms of a SO the Services may include deliverable(s) in the form of written reports by the part of PRAGM4TIC as a result of the Services. Those reports shall fall within the rules set forth within the provisions captioned “Proprietary Information” and “Confidentiality.” An SO may set a specific, or additional, compensation for the benefit of PRAGM4TIC in exchange of deliverables. In addition, if the CLIENT request additional deliverables not previously contemplated within an SO, then PRAGM4TIC will quote the CLIENT (for the CLIENT’S consideration and approval) the compensation that will accrue for benefit of PRAGM4TIC for preparing such deliverables.
4. Proprietary Information. All information, reports, methods, knowledge base, techniques, designs, software programs, deliverables, manuals and visual aids transmitted either by oral, written, visual or digital means (including online access) either used, or created, or procured, or conceived or prepared by PRAGM4TIC either in preparation, in furtherance or as a result of the Services (“Information, Data and Materials”) shall be deemed: (i) proprietary for the benefit of PRAGM4TIC; (ii) confidential for the benefit of PRAGM4TIC. Information, Data and Materials include specific terms that have been created by PRAGM4TIC to identify and measure specific methods in furtherance of PRAGM4TIC services. Regardless of any compensation and/or delivery by the part of PRAGM4TIC of Information, Data and Materials, the CLIENT shall not assert any right over Information, Data and Materials, and the client shall not be deemed as a licensee of such Information, Data and Materials. Any Information, Data and Materials delivered by PRAGM4TIC to the CLIENT shall be deemed also confidential for the benefit of PRAGM4TIC, and the CLIENT
will receive the same with the limited purpose of assessing and implementing, for the CLIENT’s own benefit, any suggestion and/or observation by the part of PRAGM4TIC. The CLIENT will not be able to transmit, or license to third parties such Information, Data and Materials. The CLIENT warrants and represents that CLIENT is not entering into these Terms and Conditions, and shall not enter into SO’s for the purposes of obtaining information that would allow CLIENT, its affiliates, principals, stockholders or agents, to be devote to business activities similar to those of PRAGM4TIC. PRAGM4TIC will be allowed to seek injunctive relief in the event that the latter warranty and representation. If the Services include software development, as explicitly agreed within a SO, PRAGM4TIC the CLIENT will be permitted to use such software for the limited purpose of using the same for the software solution being implemented thanks to the Services contracted from PRAGM4TIC, and PRAGM4TIC will retain all rights, title and interest into such software, including commercialization rights, unless otherwise explicitly stated in the relevant SO.
ARTICLE 4
PAYMENT FOR THE SERVICES
1. Compensation for the Services. CLIENT shall pay PRAGM4TIC as compensation for the performance of Services the fees and rates that will be set forth in every SO. The SO shall also set the specific terms relevant to the accrual and payment of the relevant compensation. In the event that a SO does not provide for payment terms, the invoices shall be payable thirty calendar days from the invoice date.
2. Default Compensation. Only in the event that a SO fails to set the compensation applicable to the project subject to such SO, then the applicable compensation for that SO shall be calculated at the then current hourly rate for work by the part of PRAGM4TIC personnel.
3. Deposits. Any deposit required by a SO, as well as any payment in advance, shall be deemed as “not-refundable” despite any cancellation of the Services, or portion thereof. CLIENT acknowledges that the planning and preparation of any Service requested by Client requires time and effort, including setting apart time that otherwise would have been available for other client(s).
4. Taxes. CLIENT shall pay all taxes and other governmental charges of any kind (including sales and use taxes, but excluding taxes based on the gross revenues or net income of PRAGM4TIC) accrued on the payment of the Services from CLIENT to PRAGM4TIC, and such taxes shall not be considered a part of, a deduction from or an offset against such fees.
5. Expenses. CLIENT shall reimburse PRAGM4TIC for all pre-approved reasonable and customary out-of-pocket expenses incurred in connection with the performance of the Services set forth in the SO’s, provided that PRAGM4TIC provides CLIENT with documentation of such approved expenditures, if requested. Unless otherwise agreed by the Parties in writing in a SO, PRAGM4TIC shall invoice CLIENT for such expenses at cost.
6. Currency. All compensation and/or expenditures owed to PRAGM4TIC under these Terms and Conditions shall be payable in United States Dollars.
ARTICLE 5
TERM AND TERMINATION
1. Effective Date and Termination. This Terms and Conditions shall become effective on the Effective Date and shall remain in effect until terminated by either Party by not less than thirty
(30) business days prior written notice to the other Party. Termination of these Terms and Conditions shall not affect the obligations of either Party under any then existing SO. Notwithstanding the termination of these Terms and Conditions, each such SO and the terms and conditions of these Terms and Conditions shall continue in effect with respect to the Services so ordered until the expiration of the term of each SO or the rendering of the Services under a previously executed SO.
2. Termination upon Default. Either Party may terminate these Terms and Conditions, such termination effective immediately upon notification of the same in the event that the other Party materially defaults in performing any obligation under these Terms and Conditions and such default continues unremedied for a period of thirty (30) days following, written notice of default.
ARTICLE 6
INTELLECTUAL PROPERTY
1. CLIENT’s Intellectual Property. Any information, trade secret or know-how and any materials, documents, programs or information belonging to CLIENT and supplied by CLIENT to PRAGM4TIC to allow PRAGM4TIC the provision of the Services shall remain the property of CLIENT.
2. PRAGM4TIC’s Intellectual Property. Any invention, trade secret or know-how and any materials, documents, programs or synthesis information belonging to PRAGM4TIC prior to the date of these Terms and Conditions, or developed by PRAGM4TIC shall remain the property of PRAGM4TIC.
3. Indemnity for Infringement from PRAGM4TIC. PRAGM4TIC agrees that in performing Services under these Terms and Conditions, it will not use any process, program, design, device, or material which infringes on any International, United States or foreign patent, copyright, trade secret or other proprietary right. PRAGM4TIC agrees to indemnify and defend and hold harmless CLIENT, its parent and affiliates, their respective officers, directors, employees and agents, at PRAGM4TIC’s expense, against any suit or proceeding brought against CLIENT for patent, copyright, trade secret or other proprietary right infringement arising out of the Services performed by PRAGM4TIC under these Terms and Conditions. CLIENT shall promptly notify PRAGM4TIC of any such suit or proceeding and shall assist PRAGM4TIC in defending the action by providing any necessary information. Nothing contained herein shall apply to any third-party process, device, software, or other third-party products specifically authorized or required by CLIENT where the provisions of the following section shall apply.
4. Indemnity for Infringement from CLIENT. CLIENT agrees that requesting Services under these Terms and Conditions, CLIENT will not use any process, program, design, device, or material which infringes on any International, United States or foreign patent, copyright, trade secret or other proprietary right. CLIENT agrees to indemnify and defend and hold harmless PRAGM4TIC, its parent and affiliates, their respective officers, directors, employees and agents, at CLIENT’s expense, against any suit or proceeding brought against PRAGM4TIC for patent,
copyright, trade secret or other proprietary right infringement arising out of the Services required by CLIENT under these Terms and Conditions. PRAGM4TIC shall promptly notify CLIENT of any such suit or proceeding and CLIENT shall assist PRAGM4TIC in defending the action by providing any necessary information. Nothing contained herein shall apply to any third-party process, device, software, or other third-party products specifically authorized or required by CLIENT where the provisions of the following section shall apply.
5. Use of Third-Party Software. Should, at the request of CLIENT, a SO involves the formulation of a process with the use or assistance of a existing software or business program suite provided by a third-party (a “Third Party Software”) or the adaptation of a Third Party Software to CLIENT’s business needs, CLIENT shall ensure and shall be charged in complying with the licenses for the use and/or adaptation of the Third Party Software.
ARTICLE 7
CONFIDENTIALITY
1. Confidential Information . Each of the parties acknowledge that one party may possess and may continue to possess information, which has commercial value in such party’s business or is not otherwise in the public domain, and any such information that is disclosed by such party (the “Disclosing Party”) to the other party (the “Recipient”) in connection with the performance or use of the Services is referred to as “Confidential Information.” Such Confidential Information may have been discovered or developed by the Disclosing Party or provided to it by a third party, or the Disclosing Party may hold property rights in such information by assignment, license or otherwise.
2. Non-Disclosure of Confidential Information . The Receiving Party shall refrain from unauthorized disclosure of the Disclosing Party’s Confidential Information, shall hold it as confidential and shall use the same level of care to prevent unauthorized disclosure to and use by third parties of, the Confidential Information of the Disclosing Party as it employs to avoid unauthorized disclosure, publication, dissemination or use of its own information of a similar
nature, but in no event less than a reasonable standard of care. The concept of a “reasonable standard of care” will include compliance by the Receiving Party with all laws applicable to the disclosure and use of such Confidential Information in the Receiving Party’s possession. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to its respective agents, contractors and subcontractors involved in performing, providing and using the Services where: (i) such disclosure is reasonably necessary to perform duties hereunder; (ii) such agents, contractors and subcontractors agree in writing to observe the confidentiality and restricted use and disclosure covenants and standards of care set forth herein; and (iii) the Receiving Party assumes responsibility for the acts or omissions of the persons and entities to which the Receiving Party makes disclosures of the Confidential Information of the Disclosing Party no less than if the acts or omissions were those of the Receiving Party itself.
3. Exclusive Use of Confidential Information . Neither CLIENT nor PRAGM4TIC shall use the Confidential Information of the other party except (i) in the case of PRAGM4TIC, in connection with the performance of the Services or as otherwise specifically permitted in these Terms and Conditions, or (ii) in the case of CLIENT, in connection with the use of the Services.
4. Non-Confidential Information . Confidential Information shall not include any information the Disclosing Party can demonstrate was or is: (i) at the time of disclosure to it, in the public domain; (ii) after disclosure to it, published or otherwise becomes part of the public domain through no fault of the Receiving Party; (iii) without a breach of duty owed to the Disclosing Party, in the possession of the Receiving Party at the time of disclosure to it; (iv) received after disclosure to it from a third party who had a lawful right to and, without a breach of duty owed to the Disclosing Party, did disclose such information to it; (v) independently developed by the Receiving Party without reference to or use of the Confidential Information of the Disclosing Party; (vi) a graphical user interface or other screen display that appears on monitors and provides user/operator interfaces to the Services; or (vii) user/operator instructions for the use of the Services.
5. Disclosure Required by Law . The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent required by law, regulation, professional standard,
discovery process, order of a court, governmental agency, or national stock exchange rule. However, the Receiving Party shall give the Disclosing Party prompt notice (to the extent such notice is not prohibited by law or applicable order) to permit the Disclosing Party an opportunity to obtain a protective order or otherwise protect the confidentiality of such information, all at the Disclosing Party’s cost and expense.
6. Term of Confidentiality . The covenants of confidentiality set forth herein shall apply after the Effective Date of these Terms and Conditions to any Confidential Information disclosed to the Receiving Party before, on or after the Effective Date and will continue and must be maintained from and after the Effective Date until the sooner to occur of (i) such Confidential Information entering the public domain through no fault of Receiving Party or its representatives, or (ii) the date on which such Confidential Information is no longer required to be kept confidential by applicable law.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES
1. PRAGM4TIC’s representations and Warranties. PRAGM4TIC represents and warrants to CLIENT (i) that PRAGM4TIC own or possess the necessary rights, title and licenses necessary to perform the Services hereunder; (ii) that PRAGM4TIC has the right to enter into these Terms and Conditions and to perform its obligations hereunder; and (iii) that PRAGM4TIC has obtained any and all consents, approvals and other authorizations necessary for the performance of its obligations hereunder.
2. CLIENT’s representations and Warranties. CLIENT represents and warrants to PRAGM4TIC (i) that CLIENT has the right to enter into these Terms and Conditions and to perform its obligations hereunder; and (ii) that CLIENT has obtained any and all consents, approvals and other authorizations necessary for the performance of its obligations hereunder.
ARTICLE 9
WARRANTY AS TO THE SERVICES
1. Warranties as to the Services. PRAGM4TIC represents and warrants that all Services performed hereunder shall be completed in a timely manner and shall be performed in a professional, workmanlike and competent manner in conformity with any and all applicable professional standards. Software products acquired (or licensed) by CLIENT, such as software solutions readily available in the marketplace are subject to the warranties offered by the relevant developer and/or licensor, and not by PRAGM4TIC. PRAGM4TIC further warrants that all documents and materials developed hereunder will be in accordance with the specifications contained in the relevant SO pursuant to which it is developed and will not infringe upon or violate any International or United States patent, copyright, trade secret or other proprietary right of any third-party.
2. Limitation of Warranties. PRAGM4TIC will undertake all reasonable efforts to provide technical assistance under these Terms and Conditions and to rectify or provide solutions to problems where a software does not function as described in the software documentation, as long as the software are being used within certified environments specified in the documents released along with the software. Software products acquired (or licensed) by CLIENT, such as software solutions readily available in the marketplace are subject to the warranties offered by the relevant developer and/or licensor, and not by PRAGM4TIC. PRAGM4TIC does not warrant that software will operate in combinations with other programs, hardware or data, other than as specified in the documentation or that the operation of the programs will be uninterrupted, secure or error-free as software programs are delivered "as is." Except with respect to any content provided by PRAGM4TIC, PRAGM4TIC expressly disclaims responsibility for, or liability arising out of, or based upon the content of information transmitted by CLIENT or transmitted to end users or the results of any such transmission. Except as stated herein no other warranty, express or implied applies to the Services provided hereunder and the material developed by PRAGM4TIC pursuant to any SO. The warranties above are exclusive and in lieu of all other warranties, whether express or implied, including, the implied warranties of merchantability and fitness for a particular purpose. PRAGM4TIC shall not be liable for incidental, special or consequential damages for any
reason (including loss of data or other business or property damage), even if foreseeable or if CLIENT has advised of such a claim.
ARTICLE 10
LIMITATION OF LIABILITIES
1. Exclusive Remedy. For any breach of the warranties contained in these Terms and Conditions, CLIENT’s exclusive remedy, and PRAGM4TIC’s entire liability, shall be: (i) for software’s malfunction, PRAGM4TIC shall correct the software errors that caused the breach of warranty; and (ii) for services, PRAGM4TIC shall re-perform the deficient services that cause the breach of the warranty.
2. Limitation of Damages. Except where it is judicially determined that PRAGM4TIC acted with gross negligence or willful misconduct, PRAGM4TIC’s liability for all claims arising out of these Terms and Conditions and/or the Services and/or a SO, whether in contract, tort or otherwise, shall be limited to the amount of fees paid by CLIENT to PRAGM4TIC under these Terms and Conditions during the preceding six (6) months.
3. Limitation of Damages. Except where it is judicially determined that PRAGM4TIC acted with gross negligence or willful misconduct, in no event shall either Party be liable to the other or any third Party for any loss of data, loss of business profits, business interruption, or other special, incidental, consequential or indirect damages arising from or in relation to these Terms and Conditions and/or the Services and/or a SO, however caused and regardless of theory of liability. This limitation shall apply even if such Party has been advised or is aware of the possibility of such damages.
ARTICLE 11
INDEMNIFICATION
1. Mutual Indemnification. Each Party shall indemnify and hold the other Party, its assignees, agents, officers and employees harmless from and against any damages to real or tangible personal
property and/or bodily injury to persons, including death, resulting from the indemnifying party’s employees’ or agents’ negligence or willful misconduct.
2. Indemnification by PRAGM4TIC. PRAGM4TIC shall defend, indemnify and hold harmless CLIENT from and against any suit, proceeding, or assertion of a third-party against CLIENT based upon a claim that any of the programs or informatics application, other than Third Party Software, infringes any valid patent, copyright, trade secret, or other intellectual property right under the laws of the United States. Despite the provisions of this section, PRAGM4TIC has no obligation with respect to any claim of infringement that is based upon or arises out of: (i) any modification to software not made by PRAGM4TIC; or (ii) the use or combination of software with any hardware, software, products, data or other materials not specified or provided by PRAGM4TIC; or (iii) CLIENT’s use of the Services other than in accordance with the documentation given by PRAGM4TIC’s or PRAGM4TIC’s written directions or policies.
3. Limitation for Infringements. The provisions of this Article state the sole and exclusive obligations and limitation of liability of PRAGM4TIC for any patent, copyright, trademark, trade secret or other intellectual property rights infringement.
4. Indemnification by CLIENT. CLIENT acknowledges that by entering into and performing its obligations under these Terms and Conditions, PRAGM4TIC does not assume and should not be exposed to the business and operational risks associated with CLIENT’s business. Accordingly, CLIENT shall defend, indemnify, and hold harmless PRAGM4TIC and its affiliates, licensors, suppliers, officers, directors, employees and agents from and against any and all damage, cost, liability, and expenses (including court costs and reasonable attorneys” fees) incurred as a result of claims of clients or other third-parties arising from or connected with any CLIENT services, or CLIENT’s use of the Services.
ARTICLE 12
MISCELLANEOUS
1. Non-Compete. The CLIENT warrants and represents that the CLIENT is not in the business
of providing consulting services for the benefit of third parties in the field of IT (Information Technology), including sale, distribution, development, adaptation, implementation, and consultancy, in connection with software solutions, as well as hardware systems. The CLIENT commits itself to not-to-compete with PRAGM4TIC in such business, as well as similar, related and/or incidental services. This covenant not to compete shall be valid for the ensuing twenty- four (24) months after the termination of this Agreement and shall be limited to the following geographical areas: the country of location of the client. The foregoing restrictive covenant is being entered and it is predicated upon the legitimate business interest on the side of PRAGM4TIC to protect trade secrets. The foregoing restrictive covenant is not applicable to any business activity that the CLIENT may have been effectively and openly devoted prior to the effective date of this Agreement.
2. Independent Contractor. PRAGM4TIC is an independent contractor in the performance of these Terms and Conditions and shall not be considered or permitted to be an agent, servant, joint venturer or partner of CLIENT. Neither Party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other Party, nor to represent the other Party as agent, employee, or in any other capacity. Unless otherwise agreed upon by the Parties, all persons furnished, used, retained or hired by or on behalf of PRAGM4TIC shall be employees of PRAGM4TIC, and PRAGM4TIC at all times shall maintain such supervision and control over its employees as necessary to preserve its independent contractor status.
3. Non-Assignability. The Parties may not, without the prior written consent of other Party, assign these Terms and Conditions, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be a material default of these Terms and Conditions and shall be void.
4. Records; Right to Audit. PRAGM4TIC shall maintain complete and accurate records and log files to support and document the Services provided to CLIENT in connection with these Terms and Conditions and the SO’s. PRAGM4TIC shall, upon written request from CLIENT, provide
access to such records during regular business hours at PRAGM4TIC’s convenience, to an independent auditor(s) chosen by CLIENT for the purposes of audit.
5. Force Majeure. Neither Party shall be deemed to be in default of any provision of these Terms and Conditions or under a SO, or liable to the other Party for failure or delay in the performance of a required obligation if such failure or delay is caused by strike, riot, fire, flood, natural disaster, or other similar cause beyond such Party’s control, provided that such Party gives prompt written notice of such condition and resumes its performance as soon as possible, and provided further that the other Party may terminate these Terms and Conditions if such condition continues for a period of ninety (90) days.
6. Non-Exclusive Terms and Conditions. Under no circumstances shall these Terms and Conditions be construed or interpreted as an exclusive dealing agreement. CLIENT is free to contract for any type of services, including those foreseen in these Terms and Condition, with any other Party, or to perform such Services itself. Likewise, PRAGM4TIC shall be free to provide any kind of services to any other third-parties and PRAGM4TIC shall not be restrained by virtue of these Terms and Conditions from utilizing the general and commonly attainable knowledge gained during the course of its performance hereunder to perform similar Services for other PRAGM4TIC’s clients, provided that such provision of Services or development of materials does not constitute a breach of Confidentiality under these Terms and Conditions.
7. Compliance with all Laws and Regulations. PRAGM4TIC shall comply with federal, state, and local statutes, regulations and public ordinances of any nature governing the Services. PRAGM4TIC, at its expense, shall obtain any and all licenses and permits required of it for providing the Services hereunder. PRAGM4TIC shall not discriminate in its employment practices against any person by reason of race, religion, color, sex or national origin. PRAGM4TIC agrees to comply with laws and orders relating to the employment of the handicapped, the employment of veterans and the use of minority business enterprises, as well as any and all other federal, state, county and local laws, ordinances, regulations and codes, to the extent the same are applicable to the performance of these Terms and Conditions. PRAGM4TIC shall require all of its employees
and subcontractors to comply with this provision and shall indemnify and hold harmless CLIENT and its parent and affiliates, their respective officers, directors, employees and agents, from and against any and all losses, damages, causes of action, claims, demands and expenses, including reasonable legal fees and expenses, of whatsoever kind and nature arising out of or on account of, or resulting from, the violation of any applicable law, order, ordinance, regulation or code by PRAGM4TIC, its employees or subcontractors.
8. Payroll Taxes. PRAGM4TIC assumes all liability for all contributions, taxes or payments required to be made because of persons hired, employed or paid by PRAGM4TIC by the federal and state Unemployment Compensation laws, Social Security laws and all amendments, and by all other current or future laws, whether federal, state, county or municipal, requiring payment account of a person hired, employed, or paid by PRAGM4TIC for Services performed under these Terms and Conditions.
9. Time of the Essence. Time is of the essence of these Terms and Conditions. The acceptance of a late performance with or without objection or reservation by one Party shall not waive any rights of such Party or constitute a waiver of the requirement of timely performance of any obligations remaining to be performed.
10. Non-Waiver. No provision of these Terms and Conditions shall be deemed to be waived and no breach shall be deemed to be excused unless such waiver or consent is in writing and signed by the Party claimed to have waived or consented. No consent or tolerance by either Party to, or waiver of, a breach by the other, whether express or implied, shall constitute consent to, waiver of, or excuse for any different or subsequent breach.
11. Entire Terms and Conditions. This Terms and Conditions and any Exhibits hereto, along with any SO executed in connection with these Terms and Conditions shall constitute the entire agreement between PRAGM4TIC and CLIENT with respect to the subject matter hereof. All prior agreements, representations, and statement with respect to such subject matter are superseded hereby. This Terms and Conditions, its Exhibits and any SO may be changed only by written agreement signed by PRAGM4TIC and CLIENT.
12. Non-Solicitation of Employees. Neither CLIENT nor PRAGM4TIC will hire or attempt to hire either directly or indirectly an employee of the other during these Terms and Conditions and for a period of two years after the termination of these Terms and Conditions.
13. Partial Invalidity. If any provision of these Terms and Conditions is found to be illegal or unenforceable then, notwithstanding such illegality or unenforceability, these Terms and Conditions shall remain in full force and effect and there shall be substituted for such illegal or unenforceable provision a like but legal and enforceable provision which most nearly effects the intention of the Parties. In the event a like but legal and enforceable provision cannot be substituted, the illegal or unenforceable provision shall be deemed to be deleted and the remaining provisions shall continue in full force and effect, provided that the performance, rights and obligations of the Parties under these Terms and Conditions are not materially adversely affected by such deletion.
14. Survival of Representations. The provisions of these Terms and Conditions that by their sense and context are intended to survive the performance thereof by either or both Parties shall so survive the completion of performance and termination of these Terms and Conditions, including the making of any and all payments due hereunder.
15. Construction of Terms and Conditions. This Terms and Conditions constitutes the full, complete, and only agreement as of the date hereof between the Parties with respect to the Services and SO’s provided hereunder. This Terms and Conditions shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the Party drafting these Terms and Conditions in construing or interpreting the provisions hereof as both Parties have participated in the negotiations for and preparation of these Terms and Conditions. In the event of any conflict or inconsistency between the provisions of these Terms and Conditions, the attached Exhibits, and any SO issued hereunder, the order of precedence is as follows: (a) the provisions of a SO; and (b) these Terms and Conditions.
16. Captions not Controlling. The captions used in these Terms and Conditions are solely for convenience and such captions shall not be considered in construing or interpreting any provision of these Terms and Conditions.
17. Third Party Beneficiaries. This Terms and Conditions is solely for the benefit of the Parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.
18. Governing Law. This Terms and Conditions shall be interpreted according to the laws of the State of Florida without regard to or application of choice-of-law rules or principles.
19. Duplicate Originals. Duplicate originals of these Terms and Conditions shall be executed, each of which shall be deemed an original but both of which together shall constitute one and the same instrument.
20. Marketing and Publicity. The Parties may use the name of the other Party or any of its affiliated companies in sales or marketing publications or advertisements, but abiding to the directives that each party may, from time to time, provide to the other in connection with such use. Such directives shall aim to the integrity of the image of both parties, the truthfulness of the information conveyed toward the marketplace and preserving the confidential nature of non-public information.
21. Dispute Resolution. General Procedure. Any dispute, claim or controversy arising out of or relating to these Terms and Conditions, its exhibits, any SO or the Services, or any alleged breach, including, but not limited to, any matter with respect to the meaning, effect, validity, termination, interpretation, performance or enforcement of these Terms and Conditions, any SO or the Services (“Dispute”) shall be resolved by resorting, first, to informal and direct negotiation between the Parties, second, to mediation; and lastly to arbitration, as set forth in the following provisions.
22. Dispute Resolution. Negotiation. In the event of any Dispute, the Parties shall attempt to resolve the same informally and promptly through good faith and direct negotiation between the Parties The Parties therefore agree that the following steps toward resolution will be taken: (i)
Either Party may initiate negotiation proceedings by sending notice to the other Party setting forth the particulars of the dispute, the terms of the contract that are involved, and a suggested resolution of the Dispute. (ii) The recipient of that notice must respond within ten business days with an explanation and response to the proposed solution. (iii) If the response does not resolve the Dispute, then, within the next ten business days the authors of the letters, or their representatives, shall meet on at least one occasion and attempt to resolve the matter. The meeting should be held by video conferencing means.. (iv) if such meeting(s) does (do) not produce a resolution, then the Parties shall be free to resort to Mediation as provided in the next provision.
23. Dispute Resolution. Mediation. If the controversy is not resolved by informal negotiation as provided in the preceding provision, then the case shall be referred for mediation to an independent licensed mediator within the County of Miami-Dade. Mediation shall consist of an informal, nonbinding conference or conferences between the Parties and the mediator jointly, then in separate caucuses in which the mediator will seek to guide the Parties to a resolution of the case. The Parties may select any mutually acceptable licensed mediator. The mediation shall be governed by the rules of the American Arbitration Association (“AAA”) then in force and effect. The mediation process shall continue until the Dispute is resolved by the Parties or until such time as the mediator makes a finding that there is no possibility of resolution by means of mediation. Then, the Parties shall be free to resort to arbitration as per the terms of the following provision.
24. Dispute Resolution. Arbitration. Should any Dispute remain or exist between the Parties after completion of the two-step resolution process set forth above, then the Parties may submit such unresolved Dispute to arbitration conducted in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”) and judgment upon the award rendered by the arbitral tribunal may be entered in any court having jurisdiction thereof. The arbitration tribunal shall consist of a single arbitrator mutually agreed by the Parties, or in the absence of such agreement within thirty (30) calendar days from the first referral of the dispute to the AAA, designated by the AAA. The place of arbitration shall be within the Miami-Dade County, Florida, unless the Parties shall have agreed to another location within fifteen (15) calendar days from the
first referral of the dispute to the AAA. The arbitral award shall be final and binding. The Parties waive any right to appeal the arbitral award, to the extent a right to appeal may be lawfully waived. Each Party retains the right to seek judicial assistance: (i) to compel arbitration; (ii) to obtain interim measures of protection prior to or pending arbitration, (iii) to seek injunctive relief in the courts of any jurisdiction as may be necessary and appropriate to protect the unauthorized disclosure of its proprietary or Confidential Information, and (iv) to enforce any decision of the arbitrator, including the final award. The arbitration proceedings contemplated by this Section shall be as confidential and private as permitted by law. To that end, the Parties shall not disclose the existence, content or results of any proceedings conducted in accordance with this provision, and materials submitted in connection with such proceedings shall not be admissible in any other proceeding, provided, however, that this confidentiality provision shall not prevent a petition to vacate or enforce an arbitral award, and shall not bar disclosures required by law.
25. Injunctive Relief. Notwithstanding the foregoing provisions, any party shall be entitled to seek injunctive relief from the courts with the purpose to seek injunctive relief in connection with such warranties, representation and covenants where such relief seems appropriate.
26. Waiver of Jury Trial. Each party irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal action, proceeding, cause of action or counterclaim arising out of or relating to these Terms and Conditions, as well as any agreement that may be covered for these Terms and Conditions, including any SO, its exhibits, schedules, and appendices, or the transactions contemplated hereby.
27. Notices. Any notice required or permitted hereunder shall be in writing and shall be delivered to the addresses referred in the heading of these Terms and Conditions. Notices shall be delivered as follows: (i) by personal delivery; or (ii) by established overnight courier upon written verification of receipt; or (iii) by certified or registered mail, return receipt requested; or (iv) by electronic communication. Either party may change its contact person for notices and/or address for notice by means of notice to the other party given in accordance with this provision.
28. Binding Effect. This Terms and Conditions shall be binding upon and shall inure to the benefit of the respective Parties hereto, their respective successors-in-interest, legal representatives, heirs and assigns.
29. Effective Date . This Terms and Conditions shall be effective on the date of its execution.
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IN WITNESS WHEREOF, each of the Parties, by its duty authorized
representative, has entered
into these Terms and Conditions.