The terms and conditions made between Client and BrainSell LLC., a Massachusetts Limited Liability Corporation, as described on the following language: 

BrainSell LLC. is in the business of furnishing management, advisory, training and technical consulting services to Client by assigning its employees and subcontractors to perform work in connection with the development, installation and use of information technology products. Client desires to retain BrainSell to render such services on the terms and conditions set forth herein. BrainSell LLC. and Client, therefore, agree as follows: 

1. Scope

This Services Agreement shall apply whenever BrainSell LLC. furnishes services to Client, whether such services are rendered by BrainSell LLC. personnel or subcontractors. The specifics of the nature of services to be performed, products to be delivered, if any, completion date, labor requirements, etc., shall be as set forth in separate Work Orders. The services to be performed or products delivered, if any, pursuant to any such Work Order shall hereafter be referred to as the “Work Order.” In the event of a conflict between terms or conditions in this agreement and terms or conditions set forth in a Work Order, the terms and conditions stated in the Work Order shall apply, but only to that specific Work Order. BrainSell LLC. will exercise its discretion in performing services, subject to the general direction of Client and subject to the expressed condition that BrainSell LLC. shall at all times comply with applicable laws. 

2. Term

This services agreement shall be effective from the date thereof until terminated in a manner consistent with this section and, after payment for all services performed by BrainSell LLC. prior to the date of termination.  This services agreement may be terminated by: 

• Client upon one month’s prior written notice; 
• BrainSell LLC. upon one month’s prior written notice; 
• BrainSell LLC. upon written notification to Client due to the failure of Client to pay amounts owed to BrainSell LLC. by Client in a timely way; 
• Client due to unsatisfactory performance by BrainSell LLC. after Client has given BrainSell LLC. written notice of such unsatisfactory performance and BrainSell LLC. has had reasonable time to correct the performance; or
• The institution of any proceeding under any law relating to bankruptcy or insolvency, the appointment of a receiver or trustee for Client property or upon any assignment for the benefit of creditors.

BrainSell LLC. may not assign or delegate its obligation under this agreement either in whole or in part without the prior written consent of Client. 

The completion of any specific Work Order or Client, failure to order additional services hereunder shall not terminate this Agreement, it being the intent of the parties to leave this Agreement in effect in the event of future Work Orders. 

Termination of software agreements are subject to the Terms & Conditions set forth by the software publisher.  

3. Charges

The services provided to Client will consist of a series of Work Orders. Payments shall be made for services as set forth in the Work Order. Invoices for changes and expenses will be prepared for services rendered and are payable by Client upon receipt. 

Client will reimburse BrainSell LLC. for reasonable and proper out of pocket travel expenses including airfare, lodging, meals and mileage incurred on Client’s project. 

BrainSell LLC. will charge the standard rate for travel time incurred one way to Client’s site. 

BrainSell LLC. reserves the right to increase rates for its consulting services. New rates will be implemented on Work Orders issued following the rate change upon Client’s approval. 

4. Project Changes

In the event that there is a change in the scope or deliverable of a Work Order, due to changes in Client requirements which requires time or expense charges by BrainSell LLC. in excess of what was contemplated in connection with the preparation of the deliverables, requirements, and price quotations in this Agreement, then BrainSell LLC. shall notify Client of the estimate for such change and provide justification for the increase. If Client authorizes such a change order, this change and estimate shall be added to the Work Order. 

5. Relationship of Parties

BrainSell LLC. and Client recognize and agree that BrainSell LLC. is an independent contractor and that BrainSell LLC. employees and subcontractors shall in no sense be considered employees of Client. 

6. Personnel

For the purpose of this Agreement, the term “Personnel” will refer to any employee or subcontractor of BrainSell LLC. to whom Client has been introduced, referred, or who has been assigned to perform services for Client under this Agreement. 

In recognition of the fact that BrainSell LLC. Personnel provided to Client under this Agreement may perform similar services for others, this Agreement shall not prevent BrainSell LLC. from performing such similar services or restrict BrainSell LLC. from otherwise using the Personnel provided to Client under this Agreement subject to the obligations of BrainSell LLC. to keep Client’s Proprietary Data confidential pursuant to Section 12 herein. 

Should any BrainSell LLC. personnel be unable to perform services under any particular Work Order because of illness, resignation, or other causes beyond BrainSell LLC. reasonable control, BrainSell LLC. will attempt to replace such Personnel within a reasonable time, but BrainSell LLC. shall not be liable for failure to replace such personnel within the period contemplated by any estimate. 

7. Limitation of Liability

BrainSell LLC. liability hereunder for damages, regardless of the form of actions, shall not exceed the total amount paid for services or products under the applicable Work Order. BrainSell LLC. will not be liable for any lost profits suffered by Client nor for any claim or demand against Client or by any other party. No action, regardless of form, arising out of the performance of any Work Order may be brought by either party more than one year after the cause of action has occurred. In no event will BrainSell LLC. be liable for indirect, special, or consequential damages even if BrainSell LLC. has been advised of the possibility of such damages. 

8. Warranty

BRAINSELL LLC. DOES NOT MAKE AND EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES TO BE PROVIDED UNDER ANY PARTICULAR WORK ORDER, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 

9. Mutual Non-solicitation of Personnel

Client agrees that it shall not employ, retain, hire, solicit or otherwise engage any BrainSell LLC. Personnel who has been assigned or proposed to Client by BrainSell LLC. for a period including the duration of any assignment and for one (1) year after an assignment or proposal of any such Personnel to Client, without the express written permission of BrainSell LLC. 

BrainSell LLC. agrees that it shall not employ, retain, hire, solicit or otherwise engage any Client personnel for a period including the duration of any assignment and for one (1) year after completion of a Work Order without the express written permission of Client. 

• Hiring Fee: In the event that Client hires any personnel of BrainSell LLC. who are or have been trained by BrainSell LLC. Client shall pay BrainSell LLC. within thirty (30) days of the date of such hiring, an amount equal to fifty percent (50%) of the total first year compensation (salary and other bonuses) Client pays such personnel or sub-contractor, or $50,000.00, whichever is higher, as a fee for the additional benefit obtained by Client. 

10. General

The terms of the Agreement may be modified only by mutual written consent of both parties. 

11. Confidentiality

BrainSell LLC. acknowledges that in the course of performing the services set forth in the Work Order, BrainSell LLC. will be exposed to confidential and secret information of Client (such confidential and secret information hereafter called “Proprietary Data”). BrainSell LLC. agrees to treat as confidential and proprietary all such information identified by Client as Proprietary Data and not to disclose such Proprietary Data to third parties during and after this Agreement. At termination of the Agreement, BrainSell LLC. will promptly return all copies of data and information furnished by Client in connection with the Work Order. 

12. Software Support

When requiring technical support, first call attempts should be made to the technical department of the software publisher for which you may have an existing support policy. 

Support is typically provided through a direct agreement with the software publisher through incidents, incident packages or support agreements. 

All support through BrainSell LLC. is provided at an hourly rate either virtually or onsite and will be billed by the per quarter hour. Rates are subject to change. 

It is the intention of this agreement that BrainSell LLC. will make every reasonable effort to provide services requested by Client consistent with the charter of BrainSell LLC. 

The term “this Services Agreement” includes any future written amendments, modifications, Work Orders, or supplements made in accordance herewith. 

13. Mediation

This Services Agreement shall be governed by the laws of the Commonwealth of Massachusetts. 

In the event of any dispute, controversy, or claim arising out of or relating to this contract or its interpretation, performance, breach, or termination (hereinafter referred to as the “Dispute”), the parties agree to resolve the Dispute through mediation. The mediation process shall be confidential and conducted in accordance with the rules and procedures of the selected mediator or mediation service. 

The parties agree to participate in the mediation in good faith and to make reasonable efforts to resolve the dispute related to this Services Agreement.  

Each party shall be responsible for its own attorney’s fees, if any, incurred in connection with the mediation process. 

Any settlement or agreement reached through mediation shall be reduced to writing and signed by the parties. Such settlement or agreement shall be final and binding upon the parties, and may be enforced in accordance with applicable laws. 

This mediation clause shall not apply to disputes not covered by this Services Agreement.  

This Services Agreement is the complete and exclusive statement of the agreement of services between the parties and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Services Agreement. 

NOTE:  If timely payment is not made according to the agreed terms on work orders executed by both parties, and reaches 35 days past due date, Client authorizes BrainSell LLC. to automatically charge the credit card on file. Payments made over 35 days are subject to a late charge of 1.5% of amount due, compounded monthly. All checks with insufficient funds will be subject to a $50.00 handling fee. 

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