1.1 Client hereby engages Taft Partners (“Taft Partners”) to perform the services described in the written estimate for services provided separately (the “Services” ) .
1.2 This Agreement includes the written estimate provided separately by Taft Partners to the “Client” with respect to the Services. This Agreement incorporates by reference any software license agreements between Client and CRM software provider (the “Software License” ) .
1.3 Prescience will use its reasonable best efforts to timely and properly perform all Services. Prescience shall perform the Project on a time and materials basis, where applicable, consistent with the written estimate.
2 Responsibilities; Timing and Staffing of Project
2.1 Taft Partners will use its reasonable best efforts to complete the Services within the proposed time frame and believes this is achievable. If this is not possible for whatever reason Client will be informed as soon as possible, and the parties shall endeavor to make alternative arrangements.
2.2 Unless otherwise specified, estimates of work – scope, content and detail in any report, proposal, plan or other document or presentation are included as a guide to Client and are not specific commitments.
2.3 If for any reason Client is unable to provide facilities or access to relevant staff as required by Taft Partners, Prescience will endeavor to reschedule tasks to minimize non-productive time so arising. All such non-productive time is billable but in the case where such non-productive time is expected to be significant Taft Partners will endeavor to re-assign its staff off the Project.
3 Copyright and Marketing Rights
3.1 Work For Hire: Taft Partners retains all right, title, and interest in and to the copyright and marketing rights in any Deliverables developed by Taft Partners. This clause will not apply to Client documents and programs arising solely from specific requirements, specifications and Client information detailed in writing in advance by Client. Client grants to Taft Partners a non-exclusive license to use, reproduce, and modify any such Client documents and programs solely in connection with the performance of Taft Partners’ Services.
3.2 Client warrants and represents that no content provided to Taft Partners, in order for Taft Partners to perform the Services, including but not limited to, specifications, directions, requirements, developments, data or written materials, will be defamatory, libelous or illegal or invade any third party’s privacy rights and no such content will infringe on any third party rights, including but not limited to, trademark, copyright, patent and trade secret.
4.1 The parties acknowledge that they may each be exposed to or acquire information that is proprietary and/or confidential to the other party. The parties will hold such proprietary and/or confidential information in strictest confidence and will not copy, reproduce, sell, assign, license, market, transfer, or otherwise disclose such information to third parties or to use such information for any purpose whatsoever, without the express written permission of the other party, except to perform their respective obligations under this Agreement. Each party will advise each of its employees, agents, independent contractors, and representatives of its obligations to keep such information confidential.
4.2 The parties will: (a) use reasonable efforts to assist each other to prevent any unauthorized use and disclosure of the other’s confidential information, (b) use reasonable efforts to advise each other immediately in the event that either learns or has reason to believe that such confidential information has been or will be used or disclosed by a third party, and (c) reasonably cooperate in connection with enforcing the owner’s rights against such unauthorized third party users or disclosers of such information.
4.3 The provisions of this part 4 will survive the termination or expiration of this Agreement indefinitely with respect to any confidential or proprietary information that is a trade secret, and for a period of one year with respect to any other confidential or proprietary information.
5 Fee Structure
5.1 Billing Rates & Expenses
5.1.1 Our standard rate for hourly work is $175 per hour, charged in increments of 15 minutes with a minimum of 30 minutes. All work is prepaid in time blocks in accordance with the written estimate. Time is billed against the prepaid time block.
5.1.2 Estimates for labor are valid for one (1) month unless otherwise specified.
5.1.3 Billable time includes all reasonable time worked on the Project on or off Client’s premises. Local travel time is billable at 50% of actual time.
5.2.1 Client will pay directly for, or reimburse Taft Partners , at Taft Partners’ sole option, any and all reasonable expenses contracted or incurred by Taft Partners in connection with the delivery and performance of Services under this Agreement.
5.2.2 Expenses are invoiced at cost to Client and do not incur any extra administration charge.
5.3 Invoicing and Payment
5.3.1 Client will be invoiced in full for the estimated Services costs on Taft Partners receiving written acceptance of the written estimate. Acceptance of the electronic version of the estimate constitutes acceptance of these terms and conditions. All Services are payable in advance.
5.3.2 Local taxes and/or state sales taxes may apply.
6.1 Client may terminate this Agreement by giving one months’ notice in writing to Taft Partners.
6.2 Taft Partners may terminate its Services hereunder, for any reason by giving 30 days notice in writing to Client.
7 Termination for Breach
7.1 In the event of a material breach of this Agreement by either party, the non-breaching party will have the right to terminate this Agreement immediately upon delivery of written notice, which notice will specify the nature of the breach.
7.2 If either party files a voluntary petition or a final order for relief is issued after being subject to the filing of an involuntary petition pursuant to the Bankruptcy Code, or such party is declared insolvent or bankrupt, or is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, or makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, extension or readjustment of all or substantially all of its obligations, the other party hereto will have the right to terminate this Agreement immediately upon delivery of written notice to such party.
8 Force Majeure. Neither party shall be responsible for any loss or damage resulting from any delay or failure in performing any provision of this Agreement, other than Client’s obligation to pay for Services or Deliverables, if the delay or failure results from: (a) transportation shortages, inadequate supply of labor, material or energy; (b) compliance with any law, ruling, order, regulation, requirement or instruction of any government or any department or agency thereof; (c) acts of God; (d) acts or omissions of the other party; or (e) fires, strikes, labor troubles, embargoes, war or riot. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance in whole or in part, as may be necessary or appropriate.
9.1 Client is solely responsible for the selection of all vendors, hardware, software, and other materials. In the normal course of business Taft Partners bears no responsibility, offers no warranties, and assumes no liability for Services or Deliverables provided by other parties or Taft Partners , even if Taft Partners has provided programming or content or Taft Partners has assisted and/or made recommendations to Client related to the selection of other vendors, hardware, software, and other materials and/or received discounts, referral fees, or other compensation.
9.2 Software and hardware are warranted only by the manufacturer. Taft Partners cannot be held responsible for deficiencies or imperfections in their Deliverables or inability of the product to interface with third party software and/or companies. Supported information offered by Taft Partners should be considered as “advice for intended application” and is therefore understood to be subject to human error and misinterpretation of instruction. Any liability incurred is between Client and the manufacturer of the hardware, software, or other product.
9.3 Taft Partners OFFERS NO WARRANTIES, EXPRESSED OR IMPLIED, REGARDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR CAPABILITIES OF ANY SERVICE, OR SOFTWARE OR HARDWARE RECOMMENDED, USED OR INSTALLED AS PART OF, OR RELATED TO, THIS AGREEMENT, OR THE SERVICES RENDERED BY Taft Partners HEREUNDER, Taft Partners EXPRESSLY DISCLAIMS ANY SUCH WARRANTIES.
9.4 NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOST OR INACCURATE DATA, BUSINESS INTERRUPTION, OR LOST PROFITS UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, OR OTHER LEGAL OR EQUITABLE THEORY, EVEN IF THE REMEDIES PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES.
9.5 Taft Partners’ TOTAL LIABILITY TO CLIENT FOR ANY REASON WHATSOEVER WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CLIENT HEREUNDER. THIS PARAGRAPH AND THE TERMINATION PROVISIONS HEREIN REPRESENTS PRESCIENCE’S ENTIRE LIABILITY AND CLIENT’S EXCLUSIVE REMEDY.
9.6 The engagement methodology used by Taft Partners is highly collaborative in nature. Client will timely cooperate with Taft Partners to assist Taft Partners in performing Services. Client further agrees to take all commercially reasonable actions necessary to enable Taft Partners to perform the Services in an effective and efficient manner.
9.7 Client must maintain current backups of programs and data files. Taft Partners is not liable for the loss of any data that results from an inability to restore data that has, or has not, been backed-up.
9.8 This part 9 will survive the termination or expiration of this Agreement.
10.1 Client will indemnify, defend and hold harmless Taft Partners for, from and against any and all claims, actions, damages, liabilities, costs and expenses, including reasonable attorneys’ fees, incurred by Taft Partners as a result of (a) any claim by any third party asserted against Taft Partners arising from its alleged performance and/or nonperformance of any of its obligations under this Agreement, its performance and/or nonperformance of any Services whatsoever for Client, including, but not limited to, claims of patent infringement, trademark infringement and/or dilution, unfair competition, copyright infringement, trade secret misappropriation, and/or any other claim arising from alleged violations of claimant’s intellectual property rights, and/or (b) any claim by any third party asserted against Client, Taft Partners and/or any other party arising from the occurrence or nonoccurrence of any event alleged to be proximately caused by the failure of any of Client’s software, firmware and/or hardware, including embedded chips, (whether owned, leased, licensed or otherwise in use by Client); and/or (c) any breaches by Client of its obligations under this Agreement. Taft Partners will notify Client in writing of any such claim as soon as practicable after Taft Partners obtains knowledge of the assertion of any such claim. Taft Partners will have the sole right, in its sole discretion, (x) to retain its own counsel of its own choosing to represent it with respect to any such claim, and (y) to control the response thereto and the defense thereof, including, but not limited to, the right to enter into an agreement to settle such claim. Client may participate, at its own expense, in such defense.
10.2 Client agrees to give its full cooperation to Taft Partners in assisting Taft Partners with the defense of any such claim, and to reimburse Taft Partners for all of its costs and expenses in defending any such claim, including reasonable attorneys’ fees, within 30 days after the date of each invoice delivered by Taft Partners to Client enumerating such costs, expenses and attorneys’ fees.
10.3 The provisions in this part 10 will survive the termination or expiration of this Agreement.
11.1 Notices. Any notice or other communication required under this Agreement will be deemed made and delivered on the date of delivery if delivered in person, or after deposit with an overnight commercial courier service with tracking capabilities and costs prepaid, or five days after the date of mailing if sent by certified United States mail, return-receipt requested and postage prepaid, in each case at the address of the parties set forth on the written estimate or any other address as may be given from time to time consistent with the terms of this provision.
11.2 Integration. This Agreement, together with any exhibits, constitutes the complete and exclusive statement of all terms and conditions of the agreement between the parties with respect to the subject matter hereof. This Agreement supersedes and terminates any previously existing negotiations, understandings, and agreements that may exist between the parties. This Agreement will not be varied, supplemented or interpreted by any course of dealing between the parties or by any usage of trade. The terms of this Agreement will prevail over any inconsistent terms provided by Client.
11.3 Construction. No inference in favor of, or against, any party shall be drawn from the fact that one party has drafted any portion hereof.
11.4 Severability. If any provision of this Agreement is found to be illegal or unenforceable, then, notwithstanding such finding, this Agreement will remain in full force and effect and such provision will be deemed stricken or modified to the minimum extent necessary to make it enforceable; provided, however, that the intent of the parties when entering into this Agreement is maintained.
11.5 Assignment. This Agreement and any rights or obligations hereunder will not be assigned without the prior written agreement of the other party, except where all or substantially all of the assets or equity interests of a party is sold to a third party, the assigning party provides the other notice of assignment, and such third party agrees in writing to be bound by the terms and conditions of this Agreement. Taft Partners may use subcontractors to perform Services for Client in connection with the Project.
11.6 Amendment and Waiver. This Agreement may only be amended in a writing signed by both parties. The failure of either party to enforce its rights under this Agreement will not be construed as a waiver of such rights and will not be deemed a waiver of any right of any party to insist upon strict performance hereof.
11.7 Governing Law. This Agreement will be governed, interpreted and construed pursuant to the laws of the state of Ohio, notwithstanding any conflict of law’s provisions to the contrary.
11.8 Independent Contractor. Taft Partners and each of its employees and agents is an independent contractor. Neither party nor their employees or agents is an employee or agent of the other. Neither party may bind the other.
11.9 Dispute Resolution. Venue and Jurisdiction. In the event of any claim, controversy or dispute arising out of this Agreement, and the parties are unable to resolve the dispute in the ordinary course of business, upon the written request of either party, within ten days after delivery of such notice, representatives from each party, who have the authority to finally and fully bind each party, will meet at a mutually acceptable venue, will work in good faith to resolve the dispute. If they choose, the parties may employ a third-party mediator to assist in the resolution of the dispute. If at the end of this meeting, the matter has not yet been resolved, either party will have the right to seek and obtain appropriate, equitable and provisional remedies exclusively in the jurisdiction and venue of the Hamilton County Superior Court, State of Ohio or in federal courts with jurisdiction in the State of Ohio. The requirements set forth in the first sentence of this part will not apply to any disputes necessitating injunctive relief.
11.10 Attorneys’ Fees . The “prevailing party” in any action that arises out of this Agreement will be entitled to recover costs and expenses including, without limitation, reasonable attorneys’ fees. The prevailing party may be determined by a court, mediator or by the parties themselves.
12 Execution in Counterparts. This Agreement may be signed in two or more counterparts, each of which will be deemed an original and all of which together will constitute one instrument.
13 Electronic Signature Agreement. You agree your clicking of the “accept” button on the estimate is the legal equivalent of your manual signature on this Agreement. You further agree that your use of a key pad, mouse or other device to select an item, button, icon or similar act/action, or in accessing or making any transaction regarding any agreement, disclosures or conditions constitutes your signature (hereafter referred to as “E-Signature”), acceptance and agreement as if actually signed by you in writing. You also agree that no certification authority or other third party verification is necessary to validate your E-Signature. You also represent that you are authorized to enter into this Agreement for all persons who own or are authorized to access any of your accounts and that such persons will be bound by the terms of this Agreement. You further agree that each use of your E-Signature in obtaining Taft Partners Services constitutes your agreement to be bound by the Prescience terms and conditions as they exist on the date of your E-Signature.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns. This agreement supersedes any and all prior understandings and undertakings between the parties with regard to the subject matter of this agreement.