Consulting Services Agreement
This CONSULTING SERVICES AGREEMENT (“Agreement”) is by and between Monarch Point Consulting Group, LLC., with a principal place of business at 6001 HWY A1A #8085, Vero Beach, Florida 32963 (“MPCG”) and the party clicking through to accept this Agreement or executing any Statement of Work (“SOW”) referencing this Agreement (“Client,”) and together with MPCG, the “Parties”), and constitutes a binding agreement among the Parties. By accepting this Agreement or executing any SOW, Client agrees to be bound by the terms of this Agreement. This Agreement shall be effective on either the date on which Client clicks through to accept this Agreement or the date on which both Parties execute an SOW (the “Effective Date”).
If an individual is entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), such individual is agreeing to this Agreement for that Entity and representing to MPCG that such individual has the authority to bind such Entity and its affiliates to these Terms, in which case the term “Client” as used herein will refer to such Entity and its affiliates.
Pursuant to the Terms of Service agreed to by Client (“Terms of Service”), Client is purchasing Services (as that term is defined in the Terms of Service). Client wishes to engage MPCG to receive the Consulting Services described herein, and MPCG agrees to provide the Consulting Services under this Agreement. In consideration of the foregoing, Client and MPCG, intending to be legally bound, agree to the terms set forth below.
1. Scope. All services pursuant to this Agreement provided by MPCG to Client will be outlined in one or more in one or more mutually agreed-upon and jointly executed SOW or service order form, each incorporated into this Agreement and describing in detail the scope, nature and other relevant characteristics of services to be delivered (collectively, “Consulting Services,”). All terms not defined herein shall have the meaning ascribed to them in the Terms of Service, including but not limited to any reference to the “Service”.
2. Retention. Client hereby retains MPCG to provide the Consulting Services described in one or more SOWs, subject to the terms and conditions set forth in this Agreement. The terms and conditions of this Agreement will govern the provision of Consulting Services under any SOW (including any exhibits thereto) executed by the Parties. MPCG shall not be obligated to perform any Consulting Services until both Parties have mutually agreed upon and executed an SOW. After execution of an SOW, the Consulting Services to be provided under that SOW may only be changed through a change order mutually executed by the Parties (“Change Order”).
3. Performance of Consulting Services.
3.1. Each SOW will include reasonable details, at a minimum, about the Consulting Services, Fees charged, and Personnel employed in performing the Consulting Services. MPCG and Client agree to cooperate in good faith to achieve satisfactory completion of the Consulting Services in a timely and professional manner.
3.2. The Parties will each designate a representative to interface and facilitate the successful completion of the Consulting Services (“Client’s Representative” and “MPCG’s Representative”, respectively). Any Subcontractor (defined below) designated by MPCG to perform any portion of the Consulting Services will designate a representative to interface with Client and MPCG on all matters relating to Subcontractor’s performance of Consulting Services (“Subcontractor’s Representative”).
3.3. MPCG will perform the Consulting Services, directly or through a Subcontractor of its choice. Client agrees to provide, at no cost to MPCG, timely and adequate assistance and other resources reasonably requested by MPCG to enable the performance of the Consulting Services (collectively, “Assistance”). Neither MPCG, nor its Subcontractors will be liable for any deficiency in performance of Consulting Services to the extent resulting from any acts or omissions of Client, including but not limited to, Client’s failure to provide Assistance as required hereunder.
3.4. In performing the Consulting Services, MPCG will provide such resources, and utilize such qualified employees and/or non-employee contractors of MPCG (“Subcontractors” and together with MPCG’s employees, “Personnel”) as it deems necessary to perform the Consulting Services or any portion thereof. Client may object to MPCG’s election of Subcontractors by specifying its objection to MPCG, in which case the Parties will cooperate in good faith to appoint another Subcontractor to perform such Consulting Services. MPCG may replace Personnel in its normal course of business, provided that MPCG will be responsible for the performance of Consulting Services by all Personnel.
3.5. MPCG will control the method and manner of performing all work necessary for completion of Consulting Services, including but not limited to the supervision and control of any Personnel performing Consulting Services. MPCG will maintain such number of qualified Personnel and appropriate facilities and other resources sufficient to perform MPCG’s obligations under this Agreement in accordance with its terms.
3.6. With Client’s approval, MPCG may access (“assume into”) Client’s confidential data as needed to provide the Consulting Services
3.7. This Agreement does not grant any license to any of MPCG’s, or any Subcontractor’s software or products (including, without limitation, the Service), except as specifically provided pursuant to Section 10.
3.8. In the event that Client seeks to change the scope of Consulting Services to be provided under any SOW (including but not limited to any changes to the project schedule described in the SOW), Client shall discuss such proposed changes with MPCG. If MPCG elects to perform such changes to the Consulting Services, the Parties shall work together in good faith to execute a Change Order. MPCG shall be entitled to an adjustment in Fees pursuant to the changes reflected in the Change Order. MPCG shall not be obligated to perform any differing or additional Consulting Services unless the Parties have mutually agreed upon a written Change Order.
3.9. For SOWs that are deliverable/milestone based, upon delivery of all deliverables or completion of all milestones detailed in the SOW, MPCG shall provide Client with written notice (“Completion Notice”). Client shall then have five (5) days after the date of the Completion Notice to provide MPCG with written notice describing any deliverables that have not been provided or milestones not met. The SOW shall be deemed complete absent Client's timely written notice of any deliverables or milestones not having been met. For the avoidance of doubt, a Completion Notice shall not be necessary for SOWs that are Time and Materials based.
4. Fees; Payment Terms.
4.1. Client will pay MPCG the fees to provide the Consulting Services as detailed or described in a SOW (the “Fees”). Unless agreed upon otherwise in the applicable SOW, MPCG shall invoice Client for the Services provided on a monthly basis. All Fees are due and payable upon date of invoice, except for Fees that Client disputes in good faith for reasons articulated in writing by Client within thirty (30) days after receiving such invoice.
4.2. All Consulting Services will be provided on either a time and materials or fixed-fee basis, as indicated in the applicable SOW. Each SOW providing for time and materials based Fees will contain a detailed estimate of such time and materials necessary for performance of Consulting Services (“T&M Estimate”). MPCG will make a commercially reasonable effort to provide such Consulting Services within such T&M Estimate, up to the number of hours agreed to by the Parties. MPCG will make a reasonable effort to notify Client as soon as practicable if it appears that T&M Estimate may be exceeded. Upon receiving such amended T&M Estimate, Client will assess, and accept or reject the amended T&M Estimate. Unless Client rejects such amended T&M Estimate within five (5) days of delivery, such amended T&M Estimate shall be deemed accepted by Client and Client shall be liable for all Fees associated with Consulting Services delivered in reliance on such amended T&M Estimate. Any amended T&M Estimate which is or is deemed accepted by Client shall be deemed a Change Order.
4.3. The performance of Consulting Services may be subject to a retainer to be paid in advance by Client upon execution and delivery of the SOW. Such retainer will be applied against Fees which become payable by Client pursuant to this Agreement. MPCG may refuse to perform Consulting Services unless and until such retainer is paid to MPCG.
4.4. In addition to any and all Fees, Client will reimburse MPCG for any reasonable expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses incurred by MPCG in connection with providing the Consulting Services (“Expenses”). MPCG will provide reasonable documentation for all Expenses as requested by Client. Client shall reimburse MPCG for Expenses within thirty (30) days of submission of the Expenses to Client by MPCG.
4.5. Any unpaid Fees or Expenses will become overdue thirty (30) days after payment is due and shall be subject to a late fee of one and one and a half percent (1.5%) per month for each month where payment is not received. Client’s failure to make timely payments under this Agreement may be considered by MPCG a material breach of this Agreement by Client, which may result in suspension of Consulting Services by MPCG. Client will be responsible for any and all taxes levied on transactions under this Agreement other than taxes based on MPCG’s income.
5. Relationship of the Parties. MPCG is an independent contractor and will maintain complete control of and responsibility for its Personnel, methods and operations. MPCG at no time will hold itself out as an agent, subsidiary or affiliate of Client for any purpose, including reporting to any government authority. This Agreement will not be construed so as to create a partnership, other joint venture or undertaking, or any agency relationship between the Parties, and neither Party shall become liable for any representation, act or omission of the other Party or have the authority to contractually bind the other Party. Any Fees, Expenses or other amounts paid by Client to MPCG hereunder shall not be considered salary for pension or wage tax purposes and neither MPCG nor its Personnel will be entitled to any fringe benefits, including sick or vacation pay, or other supplemental benefits of Client, unless otherwise required by law. Client shall not be responsible for deducting or withholding from Fees or Expenses paid under this Agreement any taxes, unemployment, social security or other such expense unless otherwise required by law.
6. Term and Termination.
6.1. This Agreement will commence on the Effective Date and will remain effective for as long as any SOW is in effect among the Parties, unless terminated earlier in accordance with the terms of this Section 6. Any termination of this Agreement shall terminate any then-effective SOW.
6.2. This Agreement may be terminated by either party with or without cause upon no less than thirty (30) days advance written notice to the other Party.
6.3. Either Party may terminate this Agreement if the other Party materially breaches any obligation hereunder, provided the terminating Party has provided notice of such breach to the other Party and an opportunity to cure such breach during a period of not less than thirty (30) days following such notice.
6.4. Upon termination of this Agreement, MPCG will immediately cease performing any Consulting Services, and Client will pay MPCG any Fees not yet paid for all Consulting Services provided pursuant to any SOW on or prior to such termination on a prorated basis (or on such other basis as the Parties will mutually agree) and reimburse Expenses incurred on or prior to termination not yet reimbursed.
6.5. Sections 4 through 16 of this Agreement will survive any termination of the Agreement to the extent necessary to implement their objectives. Termination of this Agreement will be without prejudice to other rights or remedies of any Party under this Agreement or applicable law, including, without limitation, any remedies for a breach of this Agreement prior to such termination.
7. Warranties, Limitation of Liability.
7.1. MPCG hereby represents and warrants that:
(a) it has all authority, licenses, permits, and consents necessary to enter into and perform its obligations under this Agreement, and will fully comply with all applicable laws and regulations in performing the Consulting Services;
(b) the Consulting Services provided pursuant to this Agreement will be performed in a timely and professional manner by MPCG and its Personnel, consistent with generally-accepted industry standards; provided that Client’s sole and exclusive remedy for any breach of this warranty will be, at MPCG’s option, re-performance of the Consulting Services or termination of the applicable SOW and return of the portion of the Fees paid to MPCG by Client for the nonconforming portion of the Consulting Services; and
(c) it is under no contractual or other restrictions or obligations which are inconsistent with the execution of this Agreement, or, to its best knowledge, which will interfere with its performance of the Consulting Services.
7.2. The Parties hereby agree that:
(a) EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, MPCG EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-SATISFACTORY QUALITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND TITLE, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, AND ALL SUCH REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW.
(b) CUSTOMIZED DELIVERABLES, SUCH AS, BUT NOT LIMITED TO, CUSTOM APPLICATIONS THAT RESIDE WITHIN THE MPCG SERVICE FRAMEWORK; HELP CENTER CUSTOMIZATIONS; INTEGRATIONS; AND PROGRAMMING SCRIPTS, THAT ARE IDENTIFIED AND BEING DELIVERED UNDER A SOW (COLLECTIVELY, "CUSTOMIZED DELIVERABLE") ARE PROVIDED TO CLIENT “AS IS” AND MPCG MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OR ANY REPRESENTATIONS TO CLIENT OR ANY THIRD PARTY REGARDING THE USABILITY, CONDITION, OPERATION OR FITNESS OF THE CUSTOMIZED DELIVERABLE. MPCG SHALL NOT BE RESPONSIBLE, AT LAW OR OTHERWISE, FOR ANY CUSTOMIZED DELIVERABLE DESPITE ANY OTHER WARRANTIES OR GUARANTEES, IN THE EVENT THAT CLIENT MODIFIES ANY CUSTOMIZED DELIVERABLE IN A MANNER NOT INSTRUCTED BY MPCG. MPCG DOES NOT WARRANT THAT CLIENT’S OR ANY THIRD PARTY’S ACCESS TO OR USE OF THE CUSTOMIZED DELIVERABLE SHALL BE UNINTERRUPTED OR ERROR-FREE, OR THAT IT WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. MPCG EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING CUSTOMIZED DELIVERABLE, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY. FURTHER, MPCG EXPRESSLY DISCLAIMS ANY RESPONSIBILITY TO SUPPORT OR MAINTAIN CUSTOMIZED DELIVERABLE AND WILL NOT DO SO UNLESS OTHERWISE AGREED BY THE PARTIES. THIS DISCLAIMER OF WARRANTY AND LIABILITY IS EXPRESSLY MADE IN ADDITION TO ANY DISCLAIMERS MADE BY MPCG OR ITS AFFILIATES UNDER THE TERMS OF SERVICE WITH RESPECT TO THE SERVICES AS APPLICABLE TO CLIENT AND ANY THIRD PARTY’S USE OF THE SERVICES.
(c) THESE DISCLAIMERS AND EXCLUSIONS WILL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
7.3. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY THE OTHER PARTY OR SUCH THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THE CONSULTING SERVICES, REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
7.4. EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY CONSULTING SERVICES, SHALL IN NO EVENT EXCEED THE FEES PAID BY CLIENT PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 7.4 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF MPCG WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. MPCG HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CLIENT THE CONSULTING SERVICES PROVIDED FOR IN THIS AGREEMENT.
7.5. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply. IN THESE JURISDICTIONS, EACH PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
8. Indemnification.
8.1 MPCG will indemnify and hold Client harmless from and against any claim against Client alleging that any Work Made For Hire (as defined below) infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). MPCG will, at its expense, defend such IP Claim and pay damages finally awarded against Client in connection therewith, including the reasonable fees and expenses of the attorneys engaged by MPCG for such defense, provided that (a) Client promptly notifies MPCG of the threat or notice of such IP Claim; (b) MPCG will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) Client fully cooperates with MPCG in connection therewith. MPCG will have no liability or obligation under this Section 8 with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by Client; (ii) modification of the Work Made For Hire by anyone other than MPCG; or (iii) the combination, operation or use of the Work Made For Hire with other hardware or software where the Work Made For Hire would not by itself be infringing.
8.2 Client will indemnify and hold MPCG harmless from and against any claim against MPCG arising from or related to Client’s breach of this Agreement, provided that (a) MPCG promptly notifies Client of the threat or notice of such claim; (b) Client will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such MPCG Indemnity Claim; and (c) MPCG fully cooperates with Client in connection therewith. Client will have no liability or obligation under this Section 8 with respect to any MPCG Indemnity Claim to the extent such MPCG Indemnity Claim is caused by Client’s use of any deliverable provided by MPCG in compliance with instructions provided by MPCG.
9. Confidentiality.
9.1. For the purposes of this Agreement, “Confidential Information” means all information disclosed by MPCG to Client or by Client to MPCG which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms; (d) was or is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (e) constitutes Client’s Service Data (as that term is defined in the Terms of Service), the use, protection and disclosure of which is governed exclusively by the Terms of Service.
9.2. Subject to the express permissions of this Agreement, MPCG and Client will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use the other Party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information solely to those of it.
9.5. Upon termination of this Agreement or a request by a disclosing party, each party, as a receiving party of Confidential Information, will return to the disclosing party any and all copies of the material containing the other party’s Confidential Information, or any portion thereof, in the possession of the receiving party, except for information necessary to implement the objectives of this Agreement after its termination.
10. Rights to Deliverables; Ownership.
10.1. The Parties hereby agree that the specified Consulting Services to be completed pursuant to any SOW primarily involve the configuration of Client’s subscription to the Service and integration of Client data with and into the Service using Pre-existing Technology, Developed Technology, and/or Generic Components (each as defined below). Unless otherwise expressly specified in a SOW, no deliverable provided in connection with the Consulting Services provided pursuant to this Agreement shall constitute a “Work Made For Hire” under this Agreement. In the event that any such deliverable is held to be a Work Made For Hire, Client hereby assigns to MPCG all right title and interest therein or to the extent such assignment is not permitted or effective, hereby grants to MPCG a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to any such deliverable. Additionally, MPCG shall have a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to incorporate into the Pre-existing Technology, Developed Technology, and/or Generic Components or otherwise use any suggestions, enhancement requests, recommendations or other feedback MPCG receives from Client. Subject to Section 10.2, Client and MPCG agree that Client shall retain all right, title and interest in any deliverable expressly stated in an SOW to be a “Work Made for Hire.”
10.2. Without limiting the foregoing, MPCG and its licensors reserve and retain ownership to all Preexisting Technology, Developed Technology and Generic Components (each as defined below), and MPCG hereby grants to Client a non-exclusive, fully paid, limited license to use Preexisting Technology, Developed Technology and Generic Components solely in connection with Client’s use of the Service. “Preexisting Technology” means all of MPCG’s inventions (including those of MPCG’s Affiliates) (whether or not patentable), works of authorship, designs, know-how, ideas, concepts, information and tools in existence prior to the commencement of the Consulting Services. “Developed Technology” means ideas (whether or not patentable) know-how, technical data, techniques, concepts, information or tools, and all associated intellectual property rights thereto developed by MPCG and its Affiliates or their Personnel in connection with providing Consulting Services pursuant to this Agreement that derive from, improve, enhance or modify MPCG’s Preexisting Technology. “Generic Components” means all inventions (whether or not patentable), works of authorship, designs, know-how, ideas, information and tools, including without limitation software and programming tools developed by MPCG and its Affiliates or their Personnel in connection with providing Consulting Services generally to support MPCG’s product and/or service offerings (including, without limitation the Service) and which can be so used without use of Client’s Confidential Information.
11. Entire Agreement. This Agreement thereto constitutes the complete and exclusive statement of the agreement among the Parties with respect to the Consulting Services to be provided pursuant to this Agreement (to be supplemented by the SOW), and supersedes all prior negotiations, understandings or agreements (oral or written), between the Parties concerning its subject matter. MPCG’s failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of the Terms. Without limiting the foregoing, the Parties agree and acknowledge that this Agreement shall have no effect on the rights and obligations of the Parties pursuant to the Terms of Service (or the Agreement as defined therein). MPCG may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. MPCG will notify Client not less than ten (10) days prior to the effective date of any such amendment and Client’s continued use of the Consulting Services following the effective date of any such amendment may be relied upon by MPCG as Client’s consent to any such amendment.
12. Waiver. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. No change, modification or waiver to this Agreement will be effective unless in writing and signed by both Parties.
13. Severability. In the event that any provision of this Agreement will, for any reason, be determined by any court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will be interpreted as closely as possible so as not affect any other provision of this Agreement, and such provision will further be modified by said court to permit its enforcement to the maximum extent permitted by law.
14. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Florida without regard to the conflicts of law provisions thereof. Exclusive jurisdiction and venue for any action arising under this Agreement is in the federal courts located in Florida, and both Parties hereby consent to such jurisdiction and venue for this purpose.