Terms and Conditions
Parties: Atlantic, Tomorrow’s Office (for or on behalf of BrainSell, a Division of Atlantic), “BrainSell” or service provider.
“Client” represents the client doing business with BrainSell
The terms and conditions made between Client and BrainSell, as described on the following language:
BrainSell 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 and Client therefore agree as follows:
1. Scope
This Services Agreement shall apply whenever BrainSell furnishes services to Client, whether such services are rendered by BrainSell 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 will exercise its discretion in performing services, subject to the general direction of Client.
2. Term
This services agreement shall be effective from the date of the work order until terminated in a manner consistent with this section and, after payment for all services performed by BrainSell prior to the date of termination. This services agreement may be terminated by:
Client upon one month’s prior written notice;
BrainSell upon one month’s prior written notice;
BrainSell upon written notification to Client due to the failure of Client to timely pay amounts owed to BrainSell;
Client due to BrainSell’s failure to comply with its obligations under this agreement, but only after Client has notified BrainSell in writing describing the alleged breach (and providing substantiating evidence) and BrainSell has had a reasonable time (not fewer than 30 days) to cure the alleged breach and failed to substantially cure the same;
Or upon 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.
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 for reasonable travel expenses incurred on Client’s project, including, without limitation, airfare, lodging, meals and mileage.
BrainSell will charge the standard rate for travel time incurred one way to Client’s site.
BrainSell 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. Fee Disputes
If Client has a good faith basis to dispute any portion of an invoice, Client shall: (a) submit a written dispute notice (including substantiating evidence) to BrainSell within fifteen (15) days following the invoice date; and (b) timely pay all undisputed charges. To the extent Client complies with the foregoing, BrainSell will use commercially reasonable efforts to reasonably promptly investigate and resolve the dispute. Any invoiced charges Client does not dispute in strict accordance with the preceding fee dispute process are “undisputed” and Client waives their right to dispute such charges thereafter. A re-connect fee may be charged to Client if BrainSell suspends the Services due to Client’s nonpayment. Time is of the essence in Client’s performance of all payment obligations.
5. Nonpayment
Should Client fail to pay BrainSell for any undisputed charges as and when due (and after a ten (10) day grace period), BrainSell has the right (but not the obligation), without notice to Client, to elect one or more of the following remedies (in BrainSell’s sole discretion):
(a) withhold performance under this Agreement or any or all Work Orders (during which withholding Client’s payment obligations will continue to accrue);
(b) terminate this Agreement and accelerate Client’s payment obligations;
(c) commence collection activities for all sums due and/or to become due hereunder, including collection costs;
(d) pursue any other remedies at law or in equity.
A $25.00 late fee will be assessed against invoices more than seven (7) days overdue, and finance charges (16% APR) will be imposed on balances thirty (30) days past due and each month thereafter until the balance is paid in full. A $150.00 fee will be assessed on any checks not honored by BrainSell’s bank.
If BrainSell is required to send Client’s account to Collections or to start any Collections-related action to recover undisputed fees (regardless of whether we commence an action), BrainSell will be entitled to recover all costs and fees we incur in the Collections process including but not limited to reasonable attorneys’ fees and costs.
6. 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 in excess of what was contemplated in connection with the preparation of the deliverables, requirements, and/or price quotations in this Agreement, then Client shall be responsible for any such additional charges. be BrainSell will endeavor to notify Client of the estimate for such change and provide justification for the increase.
7. Relationship of Parties
BrainSell and Client recognize and agree that BrainSell is an independent contractor and that BrainSell employees and subcontractors shall in no sense be considered employees of Client.
8. Personnel
For the purpose of this Agreement, the term “Personnel” will refer to any employee or subcontractor of BrainSell 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 Personnel provided to Client under this Agreement may perform similar services for others, this Agreement shall not prevent BrainSell from performing such similar services or restrict BrainSell from otherwise using the Personnel provided to Client under this Agreement subject to the obligations of BrainSell to keep Client’s Proprietary Data confidential pursuant to Section 12 herein.
Should any BrainSell personnel be unable to perform services under any particular Work Order because of illness, resignation, or other causes beyond BrainSell reasonable control, BrainSell will attempt to replace such Personnel within a reasonable time, but BrainSell shall not be liable for failure to replace such personnel within the period contemplated by any estimate.
9. Limitation of Liability
This Section limits the liabilities arising under this Agreement or any Work Orders and is a bargained-for and material part of BrainSell and Client business relationship.
Client acknowledges and agrees that BrainSell would not enter into any Work Order or Agreement unless BrainSell could rely on the limitations described in this paragraph.
Except as otherwise expressly set forth in this Agreement, BrainSell specifically disclaim all warranties of any kind, whether express, statutory or implied, including, but not limited to, all warranties of merchantability, fitness for a particular purpose, title and non-infringement and any warranties arising from course of dealing, course of performance or trade usage.
To the maximum extent permitted by law, BrainSell shall not be liable for any indirect, special, exemplary, consequential, or punitive damages, such as lost revenue, loss of profits, savings, or other indirect or contingent event-based economic loss arising out of or in connection with this Agreement, any Work Order, the Services, or for any loss or interruption of data, technology or services, or for any breach hereof or for any damages caused by any delay in furnishing Services under this Agreement or any Work Order, even BrainSell has been advised of the possibility of such damages.
To the maximum extent permitted by law BrainSell’s total, aggregate liability to Client for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement (collectively, “Claims”), whether in contract, tort, indemnification, or negligence, shall be limited solely to the amount of the Aggrieved Party’s actual and direct damages, not to exceed the amount of fees paid by Client (excluding hard costs for licenses, hardware, etc.) to BrainSell for the specific Service upon which the applicable claim(s) is/are based during the six (6) month period immediately prior to the date on which the cause of action accrued.
10. Mutual Non-solicitation of Personnel
Client agrees that it shall not employ, retain, hire, solicit or otherwise engage any BrainSell Personnel who has been assigned or proposed to Client by BrainSell 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
BrainSell 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 who are or have been trained by BrainSell Client shall pay BrainSell within thirty (30) days of the date of such hiring, an amount equal to one-hundred fifty percent (150%) of the total first year compensation (salary and other bonuses). Client pays such personnel or sub-contractor, or $75,000.00, whichever is higher, as a fee for the additional benefit obtained by Client.
11. General
The terms of the Agreement may be modified only by mutual written consent of both parties.
12. Confidentiality
BrainSell acknowledges that in the course of performing the services set forth in the Work Order, BrainSell will be exposed to confidential and secret information of Client (such confidential and secret information hereafter called “Proprietary Data”). BrainSell 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 will promptly return all copies of data and information furnished by Client in connection with the Work Order.
13. 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 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 will make every reasonable effort to provide services requested by Client consistent with the charter of BrainSell
The term “this Services Agreement” includes any future written amendments, modifications, Work Orders, or supplements made in accordance herewith.
14. Mediation
This Services Agreement shall be governed by the laws of the Commonwealth of Massachusetts.
In the event of any non-financial 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.
Except for a non-payment dispute, which is governed by the terms hereof and not subject to mediation, 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 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.