501 PARTNERS, LLC
Last Updated March 31, 2013
1) Services. 501 Partners, LLC (“501 Partners”) agrees to provide those services (the “Services”) set forth and described on a 501 Partners’ Saleforce Support Agreement, Order Schedule, Statement of Work or Work Order (each referred to herein collectively as a “Work Order”) that both references these Terms and that is signed by both 501 Partners and the customer named thereon (“Customer”). In the event of a conflict between the terms and conditions of a Work Order and these Terms, the terms and conditions of these Terms shall control unless the Work Order expressly references the section in these Terms that it is to supersede (in which case such terms in the Work Order shall control over the conflicting terms in these Terms but only for such Work Order).
2) Fees. Customer agrees to pay the fees according to the payment schedule set forth and described on the Work Order. In the event Customer fails to pay to 501 Partners the charges for Services or expenses within thirty (30) days following the invoice date, Customer agrees to pay a service charge in an amount equal to one percent (1%) per month of the total outstanding balance, or the highest rate permitted by applicable law, whichever is less, until paid in full. This service charge, which Customer agrees is reasonable under the circumstances, will accrue on a daily basis. Customer shall be responsible for any sales or similar taxes levied on any transaction in connection with the Services excluding any tax based on 501 Partners’ net income. In addition to paying the applicable fees, Customer shall also pay all reasonable travel and out-of-pocket expenses incurred by 501 Partners in connection with any Services rendered provided that the same have been pre-approved in advance by Customer.
3) Termination. Each Work Order shall commence on the date set forth therein and shall continue in effect for the initial term set forth therein (the “Initial Term”). Thereafter, following the expiration of the Initial Term, each Work Order shall automatically renew for additional periods of one (1) month each (each a “Renewal Term” and along with the Initial Term, the “Term”) unless either party notifies the other party at least thirty (30) days prior to the then current expiration date of its election not to renew the Work Order. In addition, either party may terminate a Work Order (i) in the event of a material breach of these Terms or the applicable Work Order by the other party that is not cured within thirty (30) days of written notice thereof from the other party, or (ii) immediately upon written notice if the other party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of the Work Order.
4) Effect of Termination. Upon any termination of a Work Order by 501 Partners as set forth above, in addition to any other remedies 501 Partners may have for such breach at law or in equity, Customer shall pay 501 Partners for all fees that accrued prior to the termination date and all service fees that would have continued to accrue through the end of the then current term of the Work Order had it not been terminated due to Customer’s breach. In no event shall any termination relieve Customer of the obligation to pay any fees payable to 501 Partners for the period prior to the effective date of termination. Upon any termination or expiration of this Agreement or any applicable Work Order, 501 Partners shall no longer provide the applicable Services to Customer and Customer shall cease using the Services. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. Upon termination of this Agreement, upon written request of the disclosing party, the receiving party shall promptly return or destroy all Confidential Information of the disclosing party in its possession.
5) Warranty and Disclaimer. 501 Partners agrees to provide the Services and to do so in a skilled and workmanlike manner. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES PROVIDED PURSUANT TO THESE TERMS, THE PERFORMANCE OF MATERIALS OR PROCESSES DEVELOPED OR PROVIDED UNDER A WORK ORDER, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. 501 PARTNERS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND CUSTOMER HEREBY EXPRESSLY WAIVES SUCH WARRANTIES. 501 PARTNERS SHALL NOT BE LIABLE FOR ANY SERVICES OR PRODUCTS PROVIDED BY ANY THIRD PARTY VENDORS, DEVELOPERS OR CONSULTANTS IDENTIFIED OR REFERRED TO CUSTOMER BY 501 PARTNERS DURING PERFORMANCE OF THE SERVICES, OR OTHERWISE, EXCEPT IF SUCH THIRD PARTY SERVICES ARE PROVIDED PURSUANT TO A WRITTEN AGREEMENT WITH 501 PARTNERS.
6) Exclusive Remedy. If the Services are not performed as warranted or otherwise not performed in accordance with these Terms, or are not timely performed, then, upon Customer’s written request, 501 Partners shall promptly re-perform, or cause to be re-performed, such Services, at no additional charge to the Customer. Such re-performance shall be Customer’s exclusive remedy and 501 Partners’ sole liability for any such non-performance. If, however, after repeated efforts, 501 Partners is unable to remedy such defect, then Customer’s exclusive remedy and 501 Partners’ entire liability in contract, tort, or otherwise shall be for 501 Partners to refund to Customer any amounts paid by Customer to 501 Partners in connection with the applicable Work Order for that portion of the defective Services.
7) Limitation of Liability.
a) EXCEPT IN THE EVENT OF BODILY INJURY (INCLUDING DEATH) AND DAMAGE TO REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY CAUSED BY 501 PARTNERS’ GROSS NEGLIGENCE OR WILFUL MISCONDUCT, THE ENTIRE LIABILITY OF 501 PARTNERS WHETHER IN CONTRACT, WARRANTY, TORT, STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER (AND NOT OTHERWISE REFUNDED) UNDER THE APPLICABLE WORK ORDER FOR THE PROVISION OF THE RELEVANT SERVICES.
b) IN NO EVENT SHALL EITHER 501 PARTNERS OR CUSTOMER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND OR NATURE WHATSOEVER, INCLUDING WITHOUT LIMITATION, LOST PROFITS, OR LOSS OF RECORDS OR DATA, REGARDLESS OF WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE OR IF SUCH LOSS OR DAMAGE COULD HAVE BEEN REASONABLY FORESEEN.
c) 501 Partners and Customer expressly agree that each of the liability limitations contained in this section shall remain in effect even if an exclusive remedy in these Terms is determined to fail of its essential purpose.
d) No action arising out of a Work Order, these Terms or the Services performed hereunder may be brought by either 501 Partners or Customer more than two (2) years after the cause of action has accrued.
8) Confidentiality. Each party will regard any information provided to it by the other party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). A party will not disclose the other party’s Confidential Information to any third party without the prior written consent of the other party, nor make use of any of the other party’s Confidential Information except in its performance under a Work Order. Each party accepts responsibility for the actions of its agents or employees and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of the Work Order or these Terms; or (iv) is independently developed by the receiving party. The receiving party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
9) Ownership. Except as otherwise set forth in the Work Order, Customer will have a perpetual, non-exclusive, non-transferable license to use any Work Product developed by 501 Partners in the performance of the Services and delivered to Customer, upon Customer’s payment in full of all amounts due hereunder. 501 Partners retains ownership of all information, software and other property owned by it prior to the commencement of the Services or which it develops independently of the Services and all Work Product compiled or developed by 501 Partners in the performance of the Services. 501 Partners may utilize any and all methods, computer software, know-how or techniques related to programming and processing of data, developed by it while providing the Services and may incorporate the Work Product in future releases of any of its products or services. For purposes of the foregoing, “Work Product” means any work product, deliverables, programs, interfaces, modifications, configurations, reports, analyses or documentation developed or delivered by 501 Partners in the performance of Services.
10) Non-Solicitation. During the term of the Work Order, and for a period of one year after the termination thereof, Customer shall not, without the prior written consent of 501 Partners, directly or indirectly through any subsidiaries or affiliates, recruit, solicit or hire for employment or as an independent contractor, any 501 Partners Employee (as hereinafter defined) or induce or attempt to induce any 501 Partners Employee to terminate his or her employment with, or otherwise cease his or her relationship with 501 Partners. For the purposes of these Terms, the term “501 Partners Employee” means (a) any current employee or independent contractor of 501 Partners who provides any Services pursuant to a Work Order to Customer or (b) any former employee or independent contractor of 501 Partners who provided any Services pursuant to a Work Order to Customer and to Customer’s knowledge, had terminated his or her employment or consulting relationship with 501 Partners less than one (1) year prior to the date of such prohibited recruitment, solicitation, hiring or inducement. Customer, in its capacity as a prospective employer, agrees that, in the event of its breach of this Section 9, as a reasonable estimate of actual damages to the business and goodwill of 501 Partners and not as a penalty, it shall pay 501 Partners, within thirty (30) days after receiving from 501 Partners written notice of such breach, liquidated damages equal to three (3) times the annual compensation of the 501 Partners Employee in question, including any annual bonus reasonably expected to be paid to such 501 Partners Employee.
11) Notices. Any demand, notice, consent, or other communication required by these Terms must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by recognized overnight courier service, in each case addressed to the receiving party at its address set forth on the Work Order for each party. Either party may change its address by giving written notice of such change to the other party.
12) Miscellaneous. (a) These Terms shall be construed in accordance with and governed for all purposes by the laws of the Commonwealth of Massachusetts; (b) these Terms along with the Work Orders constitute the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral; (c) neither these Terms nor any Work Order may be modified except by a writing signed by each of the parties; (d) the parties hereto agree that only the Massachusetts courts, either federal or state, shall have exclusive jurisdiction over each Work Order and these Terms and any controversies arising out of these Terms or the Services; (e) in case any one or more of the provisions contained in these Terms shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of these Terms but these Terms shall be construed as if such invalid, illegal or other unenforceable provision had never been contained herein; (f) neither party shall assign its rights or obligations hereunder without the other party’s advance written consent; provided that either party may assign its rights and obligations under a Work Order and these Terms to a purchaser of all or substantially all of its assets or in connection with a merger, reorganization or similar event (g) subject to the foregoing subsection (f), each Work Order and these Terms shall be binding upon the and shall inure to the benefit of the parties hereto and their successors and permitted assigns; (h) 501 Partners and Customer are independent contractors, and nothing in these Terms shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever; (i) except for the obligation to make payments, nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party; and (j) no waiver of any right or remedy hereunder with respect to any occurrence or event on one occasion shall be deemed a waiver of such right or remedy with respect to such occurrence or event on any other occasion.