Terms and Conditions
These Terms and Conditions, combined with the relevant Proposal and/or Statement of Work, together, shall constitute a Services Agreement ("Agreement"), dated as of the date first stated on the respective Statement of Work (the "Effective Date"), by and between TechPulse Consulting, LLC, a Louisiana limited liability company, with offices located at 208 Centre Sarcelle Blvd, Suite 200, Youngsville, LA 70592 ("TechPulse") and you, as the Customer (“you” or "Customer" and together with TechPulse, the "Parties", and each a "Party").
WHEREAS TechPulse has the capability and capacity to provide certain information technology services; and
WHEREAS Customer desires to engage TechPulse to provide the said services, and TechPulse is willing to perform such services under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, TechPulse and Customer agree as follows:
1. Services. TechPulse shall provide to Customer the services and deliverables (the "Services") set out in one or more proposals or statements of work to be issued by TechPulse and accepted by TechPulse (each, a "Statement of Work"). The initial proposal (“Proposal”), once accepted by the Customer, shall thereafter be deemed the Statement of Work as referenced herein. Additional Statements of Work shall be deemed issued and accepted only if accepted in writing by the TechPulse Contract Manager and the Customer Contract Manager, appointed pursuant to Section 2.1(a) and Section 3.1, respectively.
(a) A primary contact to act as its authorized representative with respect to all matters pertaining to this Agreement (the "TechPulse Contract Manager"). The initial TechPulse Contract Manager shall be Tyler Miller.
(b) A number of employees or contractors that it deems sufficient to perform the Services set out in each Statement of Work, (collectively, with the TechPulse Contract Manager, "Provider Representatives").
2.3 Maintain complete and accurate records relating to the provision of the Services under this Agreement. During the Term, upon Customer's written request, TechPulse shall allow Customer or Customer's representative to inspect and make copies of such records in connection with the provision of the Services; provided that Customer provides TechPulse with at least 10 days advance written notice of the planned inspection.
3.1 Designate one of its employees or agents to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the "Customer Contract Manager"), with such designation to remain in force unless and until a successor Customer Contract Manager is appointed. The initial Customer Contract Manager shall be stated in the Proposal or Statement of Work.
3.3 Cooperate with TechPulse in its performance of the Services and provide access to Customer's premises, employees, contractors, and equipment as required to enable TechPulse to provide the Services.
4.1 In consideration of the provision of the Services by TechPulse and the rights granted to Customer under this Agreement, Customer shall pay the fees set out in TechPulse's fee schedule, included in the Statement of Work. Payment to TechPulse of such fees and the reimbursement of expenses pursuant to this Section 4 shall constitute payment in full for the performance of the Services. Unless otherwise provided in the applicable Statement of Work, said fee will be payable within15 days of receipt by the Customer of an invoice from TechPulse but in no event more than 30 days after completion of the Services performed pursuant to the Statement of Work.
4.2 Customer shall reimburse TechPulse for all reasonable expenses incurred in accordance with the Statement of Work, within 15 days of receipt by the Customer of an invoice from TechPulse accompanied by receipts and reasonable supporting documentation.
4.3 Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, TechPulse's income, revenues, gross receipts, personnel, or real or personal property or other assets.
4.4 Except for invoiced payments that the Customer has successfully disputed, all late payments shall bear interest at the lesser of (a) the rate of 1.5% per month and (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse TechPulse for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which TechPulse does not waive by the exercise of any rights hereunder), TechPulse shall be entitled to suspend the provision of any Services if the Customer fails to pay any fees when due hereunder and such failure continues for 30 days following written notice thereof.
5. Indemnification. Each party ("Indemnifying Party") shall indemnify, defend, and hold harmless the other party and its officers, directors, employees, agents, affiliates, successors, and permitted assigns ("Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and costs, incurred by Indemnified Party/awarded against Indemnified Party in a final non-appealable judgment (collectively, "Losses"), relating to/arising out of or resulting from any claim of a third party arising out of or occurring in connection with: (a) bodily injury, death of any person or damage to real or tangible, personal property resulting from Indemnifying Party's willful, fraudulent or grossly negligent acts or omissions; or (b) Indemnifying Party's negligence, willful misconduct, or material breach of this Agreement, including but not limited to material breach of any representation or warranty made by Indemnifying Party in this Agreement.
6. Administrator Access.
6.1 Customer acknowledges and understands that Administrator Access is granted by TechPulse on a strict need-to-know basis; that such permissions and Administrator Access should be limited to essential employees and representatives only; and that each person with Administrator Access has the ability to significantly impact, impair and alter Customer’s information technology systems. Accordingly, TechPulse expressly waives any responsibility for and hereby disclaims any liability for damage or injury that may arise from a Customer Representative’s Administrator Access. All Customer Representatives who are being granted Administrator Access shall be confirmed to TechPulse in writing prior to being granted Administrator Access. In the event that a Customer Representative’s Administrator Access is being revoked or changed, Customer shall immediately provide TechPulse with written notification of such revocation or changes.
6.2 Release and Waiver. Customer further acknowledges and agrees to take sole responsibility for any and all actions, damages or issues arising from a Customer Representative’s use of the Administrator Access. In contemplation of this Amendment, Customer hereby waives and releases TechPulse from liability for any and all claims, causes of action and/or damages, whether in law or in equity, that are in any way related to a Customer Representative’s (excluding any individual who is affiliated with TechPulse) use, management or mismanagement of the Administrator Access.
6.3 Indemnification Relating to Administrator Access. Customer shall indemnify, defend, and hold harmless TechPulse and its officers, directors, employees, agents, affiliates, successors, and permitted assigns ("Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and costs, incurred by Indemnified Party (collectively, "Losses"), arising from Customer’s and/or an Customer Representative’s use of the Administrator Access.
7. Limited Warranty and Limitation of Liability.
(a) TechPulse shall use reasonable commercial efforts to promptly cure any such breach; provided, that if TechPulse cannot cure such breach within a reasonable time (but no more than 30 days) after Customer's written notice of such breach, Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 10.2.
(b) In the event the Agreement is terminated pursuant to Section 7.2(a) above, TechPulse shall within 30 days after the effective date of termination, refund to Customer any fees paid by the Customer as of the date of termination for the Service or Deliverables (as defined in Section 8 below), less a deduction equal to the fees for receipt or use of such Deliverables or Service up to and including the date of termination on a pro-rated basis.
7.3 TECHPULSE MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 7.1, ABOVE. ALL CUSTOMER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
8. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of TechPulse in the course of performing the Services, including any items identified as such in the Statement of Work (collectively, the "Deliverables") except for any Confidential Information of Customer or customer materials shall be owned by TechPulse. TechPulse hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.
9. Confidentiality. From time to time during the Term of this Agreement, either Party (as the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving Party"), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as "confidential," or if disclosed orally, is identified as confidential when disclosed and within 30 days thereafter, is summarized in writing and confirmed as confidential ("Confidential Information"); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party's breach of this Section 9; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party's possession prior to Disclosing Party's disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party's Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party's sole cost and expense, a protective order or other remedy. For purposes of this Section 7 only, Receiving Party's Group shall mean the Receiving Party's affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents , independent contractors, TechPulses, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
10.1 This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services under all Statements of Work unless sooner terminated pursuant to Section 10.2 or Section 10.3.
(a) Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach.
(c) Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within 30 days or is not dismissed or vacated within 45 days after filing.
10.3 Notwithstanding anything to the contrary in Section 10.2(a), TechPulse may terminate this Agreement before the expiration date of the Term on written notice if Customer fails to pay any amount when due hereunder: (a) and such failure continues for 30 days after Customer's receipt of written notice of nonpayment; or (b) more than 2 times in any 6 month period;
10.4 The rights and obligations of the Parties set forth in this Section 10.4 and in Sections 6 and 7, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
11.1 IN NO EVENT SHALL TECHPULSE BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT TECHPULSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHERWISE REMEDY OF ITS ESSENTIAL PURPOSE.
11.2 IN NO EVENT SHALL TECHPULSE'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO TECHPULSE PURSUANT TO THIS AGREEMENT IN THE 12 MONTHS PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
12. Insurance. During the term of this Agreement, Customer shall, at its own expense, maintain and carry insurance with financially sound and reputable insurers, in full force and effect that includes, but is not limited to, commercial general liability in a sum no less than $1,000,000 for any one event or occurrence and in an amount of not less than $2,000,000 in the aggregate with financially sound and reputable insurers. Upon TechPulse's request, Customer shall provide TechPulse with a certificate of insurance from Customer's insurer evidencing the insurance coverage specified in this Agreement. The certificate of insurance shall name TechPulse as an additional insured. TechPulse shall provide Customer with 7 days' advance written notice in the event of a cancellation or material change in TechPulse's insurance policy. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against TechPulse's insurers and TechPulse.
13. Non-Solicitation. The Parties agree that during the term of this Agreement and for a period of 6 months from the date that this Agreement is terminated, for whatever reasons or cause, neither Party shall, directly or indirectly, solicit, recruit or hire any current or future employees of the other Party or of any subsidiaries or affiliates to leave employment with said Party or any of its subsidiaries or affiliates or to become employed with any other person. Each Party acknowledges that the limitations as to time defined herein are reasonable and do not impose greater restraint than is necessary to protect the goodwill or other business interests of either Party. It is mutually understood and agreed that if any of the provisions relating to the scope, time or territory in this Agreement are more extensive than is enforceable under applicable law or are broader than necessary to protect the goodwill and legitimate business interests of the other Party, then the Parties agree that the same shall be modified by whatever minimal amount is necessary to bring such provisions within the ambit of enforceability under applicable law.
14. Representations and Warranties of Customer. Customer represents and warrants to TechPulse that (i) Client has the power and authority to execute this Agreement and that the execution, delivery and performance of this Agreement does not and will not conflict with, breach, violate or cause a default under any contract, agreement, obligation, instrument, order, judgment or decree to which Customer is a party or by which Customer is bound, including but not limited to any contract or agreement with any former IT service providers or their subsidiaries or affiliates which is in any way inconsistent with, or which imposes any restriction upon this Agreement; (ii) Client has not taken from any former employer or contractor or their subsidiaries or affiliates any information which is in the nature of Confidential Information, as that term is defined in this Agreement; (iii) Client has not solicited the services of TechPulse in violation of any non-solicitation or non-compete agreement executed by a former IT service provider of Client; (iv) Client voluntarily solicited the services of TechPulse; (v) TechPulse has not solicited the services of Client in violation of any non-solicitation or non-compete agreement executed by Client’s former IT service provider; and (vi) upon the execution and delivery of this Agreement by TechPulse, this Agreement shall be the valid and binding obligation of Client, enforceable in accordance with its terms.
15. Entire Agreement. This Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Statement of Work, the terms and conditions of this Agreement shall supersede and control.
16. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a "Notice", and with the correlative meaning "Notify") must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 16.
Notice to Customer:
As stated on Proposal or Statement of Work
Notice to TechPulse:
TechPulse Consulting LLC
208 Centre Sarcelle Blvd, Suite 200
Youngsville, LA 70592
Attention: Tyler Miller, President & CEO
17. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
19. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
20. Assignment. Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent (including e-mail) of TechPulse. Any purported assignment or delegation in violation of this Section 20 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. TechPulse may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of TechPulse's assets without Customer's consent.
22. Relationship of the Parties. The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Services by TechPulse shall be under its own control, Customer being interested only in the results thereof. TechPulse shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give the Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. The Services must meet the Customer's final approval and shall be subject to the Customer's general right of inspection throughout the performance of the Services and to secure satisfactory final completion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
23. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
24. Choice of Law. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of New York, United States of America.
25.1 Scope, governing rules. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by final and binding arbitration administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules and Mediation Procedures ("Commercial Rules").
25.2 Authority of tribunal, judicial review. The award rendered by the arbitrator[s] shall be final, non-reviewable, non-appealable and binding on the parties and may be entered and enforced in any court having jurisdiction, and any court where a party or its assets is located (to whose jurisdiction the parties consent for the purposes of enforcing the award). Judgment on the award shall be final and non-appealable. Unless otherwise agreed to by the parties, there shall be only one arbitrator who shall be selected on the consent of the parties within twenty (20) days of receipt by respondent[s] of the request for arbitration, or in default thereof, appointed by the AAA in accordance with its Commercial Rules.
25.3 Confidentiality. Except as may be required by law, neither a party nor the arbitrator[s] may disclose the existence, content or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right.
26. Non-Disparagement. The Customer, including its employees, agents, staff, managers, principals, partners and owners, shall not at any time make, publish, or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments, or statements concerning TechPulse or its businesses, or any of its employees, officers, existing and prospective customers, suppliers, investors, and other associated third parties. This section does not prevent the Customer, from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation, or order. The Customer shall promptly provide written notice of any such order to an authorized officer of TechPulse within two (2) business days of receiving such order, but in any event sufficiently in advance of making any disclosure to permit the employer to contest the order or seek confidentiality protections, as determined in the employer's sole discretion.
27. Waiver of Jury Trial. Each Party acknowledges that any controversy that may arise under this Agreement, including exhibits, schedules, attachments, and appendices attached to this Agreement, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits, schedules, attachments or appendices attached to this Agreement, or the transactions contemplated hereby.
28. Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the Customer to make payments to TechPulse hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, global pandemic (including that relating to Covid-19) or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) national or regional emergency; and (g) other similar events beyond the reasonable control of the Impacted Party.
The Impacted Party shall give notice within 10 days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of 30 consecutive days following written notice given by it under this Section 26, the other Party may thereafter terminate this Agreement upon 30 days' written notice.