PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY
This is a contract between you (Client) and Imagine Business Development (Company). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese”, but we have tried to make it as readable as possible. These terms are so important that we cannot provide our products and services to you unless you agree to them. By using subscription or receiving the consulting services, you are agreeing to these terms.
We periodically update these terms. If you have an active subscription, we will let you know when we do via an email or in-app notification. You can request a pdf version of your existing agreement at any time.
1. Services. During the term of this Agreement, Imagine will perform the services set forth on the “Outline of Services” provided to you separately.
2. Payment to Imagine. Client shall pay Imagine the fees for Services rendered under this Agreement, as set forth in a separate "Scope of Service". Additionally, Client will reimburse Imagine for all direct costs and expenses incurred by Imagine or any of its affiliates in connection with providing the Services, including but not limited to travel costs and expenses (such travel to be subject to Client’s prior approval).
3. Ownership; License to Deliverables. Imagine shall own all right, title and interest (including patent rights, copyrights, trade secret rights, trademark rights, database rights and all other intellectual and industrial property rights of any sort throughout the world) relating to any and all concepts, processes, inventions (whether or not patentable), works of authorship, designations, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part, by Imagine in connection with the Services. Imagine hereby grants to Client a limited, non-exclusive, license in perpetuity for Client’s internal use, to all of Imagine’s Deliverables delivered to Client pursuant to the Statement of Work hereunder, and to any Client-developed derivative works of the same. Client shall own all right, title and interest (including patent rights, copyrights, trade secret rights, trademark rights, database rights and all other intellectual and industrial property rights of any sort throughout the world) relating to any of its processes, data, training materials, etc. Client hereby grants to Imagine a limited, non-exclusive, license for the duration of this Agreement for Imagine’s use solely in delivering on the Statement of Work hereunder.
4. Term. This Agreement shall be in effect through the completion of the tasks in the Outline of Services and may be continued by mutual agreement upon execution of additional Statements of Work that reference this Master Agreement.
5. Other Engagements. Client acknowledges that Imagine will perform work for its own account and for other clients during the term of this Agreement.
6. Relationship Between Parties. Imagine is retained by Client only for the purposes and to the extent set forth in this Agreement, and its relation to Client during the period of Imagine’s retention and services hereunder shall be that of an independent contractor. Imagine shall not be an agent or employee of Client. Imagine shall have the exclusive authority to manage, direct and control the performance of its duties hereunder. All payments made to Imagine by Client shall be reported by IMAGINE to the Internal Revenue Service as income and Imagine shall be responsible for paying, according to Federal or State Law, all applicable taxes or contributions. Imagine acknowledges that Client is not responsible and will not be required to furnish any health or insurance benefits to Imagine. Imagine has no authority to act as agent for Client, enter into any contracts or agreements on behalf of Client or to legally bind, in any way, Client. This agreement does not create a partnership between Client and Imagine.
7. Confidentiality. In the course of this Agreement, each party may disclose to the other party certain confidential technical and business information which the disclosing party desires the receiving party to treat as confidential.
7.1 "Confidential Information" means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, including without limitation documents, prototypes, samples, plant and equipment, research, product plans, products, services, customer lists, software, developments, inventions, processes, designs, drawings, engineering, hardware configuration, marketing materials or finances, which is designated as "Confidential," "Proprietary" or some similar designation. Information communicated orally shall be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information disclosed to a disclosing party by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party's files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party's obligations of confidentiality; (v) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent evidence in the receiving party's possession; or (vi) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.
7.2 Each party shall not use the Confidential Information of the other party for any purpose except to evaluate and engage in discussions concerning a potential business relationship between the parties. Neither party shall disclose any Confidential Information of the other party to third parties. If any party makes copies of the Confidential Information of the other party, such copies shall also constitute Confidential Information and any and all confidential markings on such documents shall be maintained. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party's Confidential Information and which are provided to the party hereunder.
7.3 Each party shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information, and shall promptly notify the disclosing party of any misuse or misappropriation of Confidential Information of which it becomes aware. Each party shall disclose Confidential Information only to those officers, directors, employees and contractors who are required to have the information in order to evaluate or engage in discussions concerning the contemplated business relationship, and such party shall remain responsible for compliance with the terms of this Agreement by its officers, directors, employees and contractors.
8. Indemnification. Imagine shall indemnify and hold harmless the Client, its affiliates and related entities and each of their principals, officers, directors, partners, agents, affiliates, related entities and employees from any and all claims, liabilities or expenses arising out of or relating to the negligence or willful misconduct of IMAGINE, or any breach of this Agreement by Imagine or its subcontractors and their respective personnel. Client shall indemnify and hold harmless Imagine, its affiliates and related entities and each of their principals, officers, directors, partners, agents, affiliates, related entities and employees from any and all claims, liabilities or expenses arising out of or relating to the negligence or willful misconduct of Client, or any breach of this Agreement by Client or its subcontractors and their respective personnel.
9. Warranties. Imagine agrees and warrants that all Services performed under this Agreement will be performed with due diligence and in a competent, diligent, accurate and workmanlike manner and according to the methods and practices normally exercised by persons performing services of a similar nature. Client acknowledges that Imagine’s work inherently involves judgment and decisions with uncertain data and with potentially unforeseen business results. Client agrees that it will not claim liability for IMAGINE decisions or recommendations in the normal course of fulfilling this Agreement.
10. Late fees. If Company receives payment from Customer more than 15 days after the date of the invoice, Company may impose a late fee of $50.00. If Company has not received payment from Customer more than 30 days after the date of the invoice, Company may assess two percent simple interest for each month on the unpaid invoice. Interest begins accruing on the invoice due date. If Customer has not paid an invoice for more than 90 days, Company may refer collection of the unpaid amount to an attorney or collections agency. If Customer’s unpaid invoices are referred to an attorney or collections agency, Customer shall pay all reasonable attorney’s fees or collections agency fees.
If Customer requires a payment plan, Customer must contact Company before the due date on the invoice. If Customer requests a payment plan after the due date on the invoice, Company may assess late fees, accumulated interest, attorney’s fees, or any applicable combination of the three. Nothing in this section requires the Company to accept any payment plan.
11. Limitation of Liability. Imagine’s maximum liability to Client for breach of any warranties set forth in this Agreement or Statement of Work shall be limited to the amount of consulting fees theretofore paid by Client to Imagine for this Agreement in the prior six (6) months pursuant to this Agreement.
Notwithstanding anything appearing to the contrary in this Agreement, no direct or indirect partner, member or shareholder of TSW (or any officer, director, agent, member, manager, personal representative, trustee or employee of any such direct or indirect partner, member or shareholder) shall be personally liable for any debts or other obligations of TSW or in respect of any claims against TSW arising under this Agreement, and any such debts, obligations or claims shall be satisfied solely out of the assets of TSW. No personal judgment shall be sought or obtained against any direct or indirect partner, member or shareholder of TSW (or any officer, director, agent, member, manager, personal representative, trustee or employee of any such direct or indirect partner, member or shareholder).
12. Termination. Either party may terminate this Agreement or any SOW executed hereunder (i) in accordance with the terms of the applicable SOW, (ii) in the event the other party has committed a material breach of this Agreement or a SOW which remains uncured thirty (30) days after written notice of such breach, or (iii) if: (a) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes an assignment for the benefit of its creditors; or (b) proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy, insolvency or debtor’s relief law and such proceedings are not vacated or set aside within sixty (60) days from the commencement thereof. Upon termination, the terms in Section 9 (Confidentiality) survive in perpetuity.
13. No Waiver. No waiver by Imagine and Client of any of the terms, provisions or conditions hereof, or any modifications of such terms, provisions or conditions, shall be effective unless in writing and signed by a duly authorized officer.
14. Non-solicitation. Should Client hire any associate of IMAGINE, whether employee or independent contractor, for a period of twelve (12) months following the final payment of this Agreement, then Client will pay a recruiting fee of twenty percent (20%) of the first year base of said associate if they are hired as an employee or of the expected first year gross billings if they’re hired as an independent contractor.
15. Assignment. Imagine’s duties hereunder may not be assigned or delegated by Imagine to any third party without the prior written consent of Client. The foregoing is not intended to prevent Imagine from retaining the services of other parties as sub-contractors for purposes of accomplishing the tasks in the Statement of Work. The rights and obligations of Client under this agreement shall be assignable.
16. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York.
17. Force Majeure. Neither party shall be liable for any delays or nonperformance to the extend, and for so long as, such delay or nonperformance is caused by or results from circumstance or causes beyond its reasonable control, provide that the affected party makes commercially reasonable efforts to avoid such delay or nonperformance and resume full performance as soon as reasonably able, including, without limitation, acts or omissions or the failure to cooperate by the other party (including, without limitation, entities or individuals under its control, or any of their respective officers, directors, employees, other personnel and agents), acts or omissions or the failure to cooperate by any third party, fire or other casualty, act of God, strike or labor dispute, war or other violence, or any law, order or requirement of any governmental agency or authority, If the force majeure event continues for more than 30 days in the aggregate, the party that is not claiming the force majeure event may terminate this Agreement immediately upon written notice to the other party.
18. Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes and nullifies all prior representations, negotiations, proposals and statements.
19. Notices. Any notice, request, demand, statement, routine communications, or invoices will be in writing and delivered to the parties at the addresses or facsimile numbers identified below. Notice will be deemed given when physically delivered to the other party in person, when transmitted to the other party by confirmed facsimile transmission, or when deposited in the U.S. Mail or with a delivery service, postage pre-paid. Either party may change its address or facsimile number by providing notice of same in accordance with this provision.
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