CONSULTING AND DEVELOPMENT SERVICES TERMS AND CONDITIONS
START IMAGINING’s work and services (Services) are described in the Scope of Work. Services may include, but are not limited to, the development of custom Excel spreadsheets and/or Access databases according to CUSTOMER specifications, attendance at meetings and/or the provision of spreadsheet and/or database support. Upon mutual agreement, the parties may add additional Scopes of Work to this Agreement, which will be attached hereto as Exhibits. Each such Exhibit will be agreed to and signed by an authorized representative from each party.
CUSTOMER will be billed for Services as described in the Quote/Estimate Page, part of Scope of Work.
CUSTOMER shall reimburse START IMAGINING for any out-of-pocket or other reasonable expenses incurred by START IMAGINING in its performance under this Agreement. Each month START IMAGINING will provide the CUSTOMER with an invoice based on the services provided during the previous month, if applicable. All payments are due 30 days from receipt of invoice. Payments that are more than 10 days late will incur a 1.5% monthly penalty. START IMAGINING is not obligated to continue the work and may stop work if the monthly invoices are not paid on a timely basis. CUSTOMER must pay all past due invoices in full prior to reinstatement of work.
START IMAGINING and CUSTOMER Responsibilities.
START IMAGINING represents that it will use Reasonable Efforts to perform the Services in a professional manner in accordance with this Agreement. The CUSTOMER agrees that its personnel will respond in a timely manner to inquiries from START IMAGINING employees relative to the Services to be performed under this Agreement.
Term and Termination.
This Agreement shall commence on the Effective Date shown above, or on the date which authorization is received through email, phone, or mail to that states to proceed with the work and shall continue until terminated by either party upon thirty (30) days written notice. Termination of this Agreement also terminates all then-outstanding SOWs. In the event of termination of an SOW, START IMAGINING shall be paid by CUSTOMER for all Services rendered up to the date of termination. This Agreement may be terminated by either party immediately and without notice in the event that the other commits a material breach of any of its provisions and fails to cure any such breach within 10 days of receiving written notice from the other specifying the breach. Failure to make timely payments on monthly invoices constitutes a material breach of this Agreement.
Except as specifically provided in this Agreement or in the SOW, each party shall retain all right, title, and interest in their respective Intellectual Property. CUSTOMER shall not acquire rights in START IMAGINING’s Intellectual Property, except as specifically provided for in this Agreement or in the SOW. START IMAGINING shall not acquire rights in CUSTOMER’s Intellectual Property, except as specifically provided for in this Agreement or in the SOW.
The parties agree not to permit access to or to disclose the other party’s Confidential or Proprietary Information (Confidential Information) except to its authorized employees. START IMAGINING will only use Confidential Information received from the CUSTOMER for the specific purpose of performing its duties for the sole benefit of the CUSTOMER as described in this Agreement. If a party discloses Confidential Information, the receiving party agrees to preserve and protect such Confidential Information from disclosure, inadvertent or otherwise, to any person or persons, through an exercise of care equivalent to the degree of care it uses to preserve and protect its own Confidential Information and, in any event, with no less than a reasonable standard of care for protection. The foregoing restriction shall not apply to any portion of the information that:
is or becomes part of the public domain without breach of this Agreement;
is subsequently received from a third party who did not obtain or disclose it in violations of any rights of the disclosing party;
is already known to a party as evidenced by tangible documentation;
was independently developed by the receiving party without resort to the Information disclosed hereunder;
the receiving party is compelled to disclose pursuant to a judicial order issued by a court of competent jurisdiction to which the receiving party shall provide formal notice to the disclosing party, and all reasonable assistance in opposing such disclosure order.
Disclaimer of Implied Warranties.
THE CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE WORK PERFORMED UNDER THIS AGREEMENT IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND. START IMAGINING SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
The CUSTOMER agrees to indemnify, defend and hold START IMAGINING, its owners, lawyers, accountants and employees harmless from and against any and all losses, claims, demands, damages, liabilities, costs and expenses, including but not limited to reasonable attorney’s fees and the costs of any legal action arising from CUSTOMER’S use of the services. Such indemnification shall include, but not be limited to, claims for libel, slander, theft of misappropriation of intellectual property, or unauthorized use of any trademark, trade name, or service.
Limitation on Damages.
START IMAGINING will work to provide professional consulting services and high-quality deliverables to the CUSTOMER. However, START IMAGINING is not, and will not be liable or responsible for any consequential or incidental damages resulting from START IMAGINING’S services, including, but not limited to, any interruptions of service, or data loss (including lost transactions) regardless of whether such damages arose from START IMAGINING’S negligence.
Limitation of Liability.
THE CUSTOMER AGREES THAT START IMAGINING’S MAXIMUM LIABLITY TO THE CUSTOMER SHALL NOT EXCEED THE AMOUNT PAID BY THE CUSTOMER TO START IMAGINING AND IN NO EVENT SHALL START IMAGINING BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES HEREUNDER, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA OR INFORMATION OF ANY KIND, HOWEVER CAUSED. START IMAGINING IS NOT AND WILL NOT BE LIABLE FOR DATA ENTRY BY THE CUSTOMER THAT RESULTS IN INDIRECT OR CONSEQUENTIAL DAMAGES HEREUNDER, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, MISINFORMATION TO CUSTOMER OR ANY THIRD PARTY OR LOSS OF DATA OR INFORMATION OF ANY KIND. ONCE CUSTOMER HAS RECEIVED AND ACCEPTED PROJECT, START IMAGINING IS NOT AND WILL NOT BE RESPONSIBLE OR LIABLE FOR MODIFICATIONS OR MISUSE OF PROJECT RESULTING IN INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, MISINFORMATION TO CUSTOMER OR ANY THIRD PARTY OR LOSS OF DATA OR INFORMATION OF ANY KIND.
Governing Law and Language. This agreement shall be governed and construed in all respects by the internal laws of the State of New York. The venue of any legal action under this Agreement shall be Niagara County, New York.
Notices. Whenever, under the terms of or in connection with this Agreement, any notice, consent, approval, authorization or other information is required to be given by either party, such notice, consent, approval, authorization or other information shall be in writing and shall be given or made by electronic mail, facsimile, personal delivery, reputable overnight courier or registered or certified mail, return receipt requested and with all postage prepaid.
No Agency. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The amount to be paid to START IMAGINING pursuant to this Agreement shall not be considered as salary, and START IMAGINING shall not be entitled to participate in any of the CUSTOMER’s benefit plans. START IMAGINING shall be solely responsible for the payment of all federal, state and local taxes, social security benefits, unemployment compensation and worker's compensation insurance. This Agreement or the creation of the Work creates no employer-employee relationship.
Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such un-enforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole.
ASSIGNMENT. This Agreement may not be assigned or transferred by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.
Entire Agreement. This Agreement supersedes all previous agreements with respect to the subject matter hereof between START IMAGINING and the CUSTOMER. This Agreement may only be changed by mutual agreement of authorized representatives of the parties in writing.