GENERAL TERMS AND CONDITIONS
Any Client that accepts Services, Hosting/Email and/or other Consulting, herein “Client”, shall accept the following Terms and Conditions as attached to an Invoice delivered by Fandotech (Consultant) and to be paid by Client.
1.0 GENERAL
The Consultant shall perform for the Client professional services as detailed by the Client in the Authorization Quote, Agreement or service request be it in Email, Fax and/or Verbally by Client calling Consultant (“Request”). Such Requests for service shall result in generating an invoice in all phases of the Service to which the Request under this Agreement applies.
Any provisions of this Agreement held in violation of any law or ordinance shall be deemed stricken, and all remaining provisions shall continue valid and binding upon the parties. Client and Fandotech shall attempt in good faith to replace any invalid or unenforceable provisions of this Agreement with provisions which are valid and enforceable and which come as close as possible to expressing the intention of the original provisions.
2.0 MEANING OF TERMS
As used herein the term "this Agreement" refers to the Requests, Proposal Letter, Online Requested Service, Email requested Service or written Agreement to which these General Terms and Conditions are attached, directly or by reference, as if they were part of one and the same document.
3.0 RESPONSIBILITIES OF CLIENT
Client shall:
Provide all criteria and full information as to Client's requirements for the Project or Service, Designate a person to act with authority on the Client's behalf in respect to all aspects of the Project, Examine and respond promptly to the Consultant's submissions, Give prompt written notice to the Consultant whenever the Client observes or otherwise becomes aware of any defect in the work, Guarantee access to and make all provisions for the Consultant to enter upon public and private property, access to files and electronic forms, databases and software as required for the Service.
Client agrees not to employ or solicit the employment of or otherwise engage, or have a third party on behalf of Client employ or solicit the employment of or otherwise engage any employee of Consultant at any time during, and for a period of one year following, the termination of this Contract. In the event an employee of the Consultant approaches Client for the purpose of employment either directly or indirectly, Client agrees not to engage the employee at any time during, and for a period of one year following the termination of this Agreement.
4.0 SUCCESSORS AND ASSIGNS
4.1 Neither the Client nor the Consultant shall assign, sublet or transfer any rights under or interest in (including, but without limitation, moneys that may become due or moneys that are due) this Agreement without the written consent of the other (which shall not be unreasonably withheld), except to the extent that any assignment, subletting or transfer is mandated by law or the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Nothing contained in this paragraph shall prevent the Consultant from employing such independent professional associates and consultants as the Consultant may deem appropriate to assist in the performance of services hereunder.
4.2 Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than the Client and the Consultant, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the Client and the Consultant and not for the benefit of any other party.
5.0 MEDIATION
Prior to the initiation of any legal proceedings, the parties to this Agreement agree to submit all claims, disputes or controversies arising out of or in relation to the interpretation, application or enforcement of this Agreement to non-binding mediation. Such mediation shall be conducted under the auspices of the American Arbitration Association or such other mediation service or mediator upon which the parties agree. The Party seeking to initiate mediation shall do so by submitting a formal, written request to the other party to this Agreement. This section shall survive completion or termination of this Agreement, but under no circumstances shall either party call for mediation of any claim or dispute arising out of this Agreement after such period of time as would normally bar the initiation of legal proceedings to litigate such claim or dispute under the laws of the State of Connecticut.
6.0 PURCHASE ORDERS
In the event the Client issues a purchase order or other instrument related to the Consultant's services, it is understood and agreed that such document is for the Client's internal accounting purposes only and shall in no way modify, add to, or delete any of the terms and conditions of this Agreement. If the Client does issue a purchase order or other similar instrument, it is understood and agreed that the Consultant shall indicate the purchase order number on the invoices sent to the Client.
7.0 SUBCONSULTANTS
Except as expressly agreed, the Client will directly retain other consultants whose services are required in connection with the project. As a service, the Consultant may advise the Client with respect to selecting other consultants and may assist the Client in coordinating and monitoring the performance of other consultants. In no event will the Consultant assume any liability or responsibility for the work performed by other consultants, or for their failure to perform any work, regardless of whether the Consultant hires them directly or as sub-consultants, or only coordinate and monitor their work. When the Consultant does engage a sub-consultant on behalf of the Client, the expenses incurred, including rental of special equipment necessary for the work, will be billed as they are incurred per the Agreement. By engaging the Consultant to perform services, the Client agrees to hold the Consultant, its directors, officers, employees, and other agents harmless against any claims, demands, costs, or judgments relating in any way to the performance or non-performance of work by another consultant or sub-consultant.
8.0 LIABILITY TO THIRD PARTIES
The Client agrees to be solely responsible for, and to defend, indemnify, and hold the Consultant harmless of any and all claims by third parties arising out of or in any way related to our performance or non-performance of services, except claims for personal injury, death, or personal property damage, to the extent caused by the negligent misconduct of the Consultant's employees.
9.0 INDEMNIFICATION
9.1 Neither party shall have liability for loss of product, loss of profit, loss of use, or any other indirect, incidental, special, or consequential damages incurred by the other party, whether brought as an action for breach of contract, breach of warranty, tort, or strict liability, and irrespective of whether caused or allegedly caused by either party's negligence and the Client agrees to defend, indemnify and hold the Consultant harmless with respect to any such claim.
9.2 Any damage caused by negligence, including errors, omissions, or other acts, or for any damages based on contract, breach of warranty, tort or for any other cause of action, the Consultant's liability including that of its employees, agents, directors, and officers shall not exceed the lesser of: (I) $50,000 or (ii) the sum paid the Consultant for one month’s fee hereunder for the services rendered.
10.0 LIMITATION OF LIABILITY
Notwithstanding any other provision of these General Terms and Conditions, and unless otherwise subject to a greater limitation, the Consultant's liability to the Client for any loss or damage, including, but not limited to, special and consequential damages, arising out of or in connection with the accompanying Proposal or any related Agreement from any cause, including the Consultant's professional negligent errors or omissions shall not exceed the greater of $50,000 or the total compensation received by the Consultant hereunder, and the Client hereby releases the Consultant from any liability above such amount.
11.0 WARRANTIES
All services of the Consultant and its independent professional associates, consultants and subcontractors will be performed in a reasonable and prudent manner in accordance with generally accepted consulting practice. All estimates, recommendations, opinions and decisions of the Consultant will be on the basis of the information available to the Consultant and the Consultant's experience, technical qualifications, and professional judgment. Consultant installations are warranted for a period of 30 days. All hardware and software will be covered by the Manufacturer’s warranty(ies).
12.0 CHANGES OR DELAYS
Unless the accompanying Agreement/Proposal provides otherwise, the proposed fees constitutes the Consultant's estimate to perform the services required to complete the Project, as the Consultant understands it to be defined. For those projects involving conceptual or process development work, activities often are not fully definable in the initial planning. In any event, as the project progresses, the facts developed may dictate a change in the services to be performed, which may alter the scope. The Consultant will inform the Client of such situations so that negotiation of change in scope and adjustment to the time of performance can be accomplished as required. If such change, additional services, or suspension of services results in an increase or decrease in the cost of or time required for performance of the services, whether or not changed by any order, an equitable adjustment shall be made and the Agreement modified accordingly.
Costs and schedule commitments shall be subject to renegotiation for unreasonable delays caused by the Client's failure to provide specified facilities or information, Client’s failure to make payment in accordance with its obligations under this contract, or for delays caused by unpredictable occurrences or force majeure, such as fires, floods, riots, strikes, unavailability of labor or materials, delays or defaults by suppliers of materials or services, process shutdown, acts of God or of the public enemy, or acts or regulations of any governmental agency. Temporary work stoppage caused by any of the above will result in additional cost (reflecting a change in scope) beyond that outlined in this proposal.
13.0 PROVISIONS CONCERNING PAYMENTS
If Client fails to make any payment due the Consultant for services, expenses or other charges within thirty (30) days after receipt of the Consultant's statement or invoice therefore, the amounts due the Consultant will be increased at the rate of one (1) percent per month from said thirtieth day, and in addition, the Consultant may, after giving a minimum of seven (7) days written notice to the Client, suspend services under this Agreement until the Consultant has been paid in full all amounts due for services, expenses and charges. Consultant may at its sole discretion also suspend services on any or all other projects being performed by Consultant for Client under any other agreements until Consultant has been paid in full for all amounts due for services, expenses and any other charges. The Client shall be responsible for the reasonable cost of collection.
14.0 TERMINATION
The obligation to provide further services under this Agreement may be terminated by either party by conforming to the provisions of Termination as defined in the Agreement, or in the absence of a written definition for a month to month service thirty (30) days written notice shall be given. In any event, the Termination shall be due to a substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party. In the event of any termination, the Consultant will be paid for all services rendered to the date of termination, all reimbursable expenses and termination expenses.
15.0 CONTROLLING LAW
This Agreement is to be governed by the law of the principal place of business of the Consultant.
16.0 STANDARD OF CARE
The standard of care applicable to Consultant's services will be the degree of skill and diligence normally employed by professional consultants or consultants performing the same or similar services at the time said services are performed.
17.0 INSURANCE
The Consultant will secure and maintain such insurance as will protect him from claims under the Workmen's Compensation Act and from claims for bodily injury, death or property damage which may arise from the performance of Consultant’s services under this Agreement. The Consultant will secure and maintain professional liability insurance for protection against claims arising out of the performance of professional services under this Agreement caused by errors or omissions for which the Consultant is legally liable.
18.0 SALES TAX EXEMPTION CERTIFICATE
Client must provide the Consultant an exemption certificate within fifteen (15) days after the effective date of this Agreement for any exemptions claimed by the Client from sales tax for any services performed or for any tangible personal property purchased under this Agreement. In the event that the Client fails to timely provide the Consultant with such an exemption certificate within such time, the Client shall be solely responsible for obtaining a refund for any and all sales tax collected or paid by the Consultant in connection with the performance of this Agreement before the Client provides the Consultant with such exemption certificate, including any sales tax paid by the Consultant to subcontractors, engineers, suppliers or any other individual entity.
19.0 PERIOD OF SERVICE
The Consultant shall proceed with the services for the TERM defined within the attached Agreement. Only in the event no attached Agreement dictates a Term and a Renewal term, services shall be provided as month to month.
20.0 TIME LIMIT ON CLAIMS
All claims against Consultant, whether grounded in contract, tort, or otherwise, shall be brought no later than thirty (30) days from the date of issuance of the invoice relating to the services giving rise to the claim. No claim may be brought unless notice has been given as described below in Section 21.0.
21.0 NOTICE REQUIREMENTS
If Client discovers a defect, fault, error, non-compliance or omission in Consultant’s services; it shall give written notice to the Consultant within thirty (30) days. Notice shall include a detailed description of the nature of the defect, fault, error, non-compliance or omission. Client agrees that failure to give such notice shall result in Client’s waiver of the claim.