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Professional Services Agreement

THIS PROFESSIONAL SERVICES AGREEMENT (“AGREEMENT”) BETWEEN YOU (“YOU” OR “CLIENT”) AND ALL TOVUTI, LLC, AN IDAHO LIMITED LIABILITY COMPANY (“CONTRACTOR”), PROVIDES THE TERMS AND CONDITIONS UNDER WHICH CONTRACTOR WILL PROVIDE CLIENT WITH CERTAIN TOVUTI™ BRAND PROFESSIONAL SERVICES.
IT IS IMPORTANT THAT YOU READ THIS ENTIRE AGREEMENT BEFORE SIGNING THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, PLEASE DO NOT SIGN THIS AGREEMENT AND DO NOT ORDER, PURCHASE, ACCEPT DELIVERY OF, OR USE THE PROFESSIONAL SERVICES. WE ENCOURAGE YOU TO REVIEW THIS AGREEMENT IN ITS ENTIRETY BEFORE SIGNING THIS AGREEMENT.
1. AGREED WORK
Contractor is a software development company that provides software development services to other companies and develops and sells its own software-as-a-service product line. Contractor creates value for each Client by developing and delivering software and related services. Contractor’s work with Client and time for performance shall be agreed upon at the beginning of each project pursuant to a statement of work, the form of which is attached hereto as Exhibit One (“Statement of Work”). Any software, documents, materials, ideas, and other information developed by Contractor under the Statement of Work shall be called the “Work Product”. Successful completion and delivery of the Work Product on time is contingent upon Client’s timely provision of necessary information and other supporting resources. Contractor makes no representations or warranties, whether expressed or implied, with respect to the Work Product and guarantees no particular outcome or result. Contractor does not provide legal advice and does not represent or guarantee that any suggested course of conduct, strategy, or action conforms to any applicable laws or regulations. Each Statement of Work shall be governed generally by this Agreement, and in the event of a conflict, the terms of the Statement of Work shall prevail.
2. CONFIDENTIAL INFORMATION
Contractor treats any information and documents received from Client (subject to the exclusions below) as “Confidential Information” so long as Client designates such information and materials as confidential or it is reasonably apparent that such information and materials are confidential. Contractor limits the disclosure of Confidential Information, and any summaries, analyses, compilations, and studies thereof generated in connection with Contractor’s work, to those employees and agents of Contractor that need access thereto in order for Contractor to perform the work. Contractor will not disclose Confidential Information to others without Client’s consent or use it for purposes other than the work. Confidential Information does not include information or documents that (a) are now or later become generally available to the public through no fault of Contractor or its employees or agents, (b) are already rightfully in Contractor’s possession, (c) are independently developed by Contractor without use of Confidential Information, or (d) are obtained by Contractor from a third party which is not Client’s agent and has the right to transfer or disclose them. Client is similarly bound as to Contractor’s Confidential Information, which consists of all information and documents received from Contractor (subject to the same exclusions above). In the event Client has signed a separate non-disclosure agreement with Contractor, the terms of such agreement shall prevail.
3. OWNERSHIP OF CONTRACTOR IP
Contractor has developed and is constantly developing and refining proprietary intellectual property (“Contractor IP”), which includes, for example, concepts, artwork, logos, designs, frameworks, methodologies, know-how, software, and databases. Contractor IP is an integral part of Contractor’s knowledge base and is reusable from project to project and with multiple clients. Contractor IP can be embodied in many forms of media, is not dependent on the availability or existence of patent, copyright, trademark, or trade secret protection, and is necessarily created or enhanced during Contractor’s work. Irrespective of the media utilized, (a) all Contractor IP existing, authored, created or invented before Contractor commences its work for Client and (b) all Contractor IP that is developed or enhanced during and in the course of Contractor’s work for Client belongs to Contractor, and Contractor owns all rights therein. Client retains all ownership rights to its own intellectual property and proprietary materials existing, authored, created or invented by Client before Contractor commences its work, but any derivatives thereof created by Contractor during and in the course of Contractor’s work for Client that are embodied in Work Product shall be owned by Contractor as Contractor IP.
4. CLIENT USE OF CONTRACTOR IP
All use of Contractor IP is governed by license. The terms of the license arrangement between Contractor and Client shall identify the specific Contractor IP that is licensed, the license fee, the permitted uses and permitted users, the duration of the license term, and any renewal and extension provisions. These license provisions may be contained in a proposal letter, an engagement letter, or a separate license agreement between Contractor and Client. If no specific separate license provisions are established in a signed writing, then Contractor hereby grants to Client a non-exclusive, perpetual, royalty-free, world-wide, non-sublicensable, limited license under copyright to use solely for its own benefit, for internal purposes only, and only with its own personnel, such Contractor IP that is embodied in Work Product as is necessary for Client to make the agreed-upon use of the Work Product.
5. THIRD PARTY USE OF WORK PRODUCT AND CONTRACTOR IP
Without Contractor’s prior written consent, neither Work Product nor Contractor IP may be (a) disclosed to or discussed with, or in any way made use of or relied upon by, a third party, (b) shared beyond the permitted user group, (c) converted to another medium, or (d) utilized in connection with any financing or securities offering.
6. FINANCIAL TERMS
The financial terms may be determined on a project-by-project basis and set forth in the Statement of Work. If such financial terms are not set forth in the Statement of Work, then the following general terms apply.
An initial invoice shall be rendered at the start of each project. Additional invoices typically are sent to Client on a monthly basis thereafter. Payment is due upon Client’s receipt of an invoice. An invoice contains both fees and reimbursable expense components. Reimbursable expenses include out-of-pocket expenses relating to the project, such as travel and travel-related expenses; research and research support costs; third party vendor and subcontractor costs; and other miscellaneous expenses directly attributable to the project. A final expense accounting will be rendered within 60 days following conclusion of a given project, together with a refund (after deduction of any unpaid fees) or a final expense billing as appropriate. Client is responsible for payment of all VAT, GST, sales taxes, withholding taxes, and other local taxes that may be owed to U.S. or other taxing authorities. Contractor’s fees are net of all such taxes. A late payment charge may be added to billed amounts outstanding for more than 30 days.
7. LIMITED LIABILITY AND INDEMNIFICATION
Except as it relates to any misuse of Contractor IP by Client, neither party shall be liable to the other party for any incidental, consequential, special, multiple, or punitive damages. Contractor’s liability to Client with respect to any project shall in no event exceed the fees received by Contractor from Client with respect to such project. Subject to these limitations, Client shall indemnify and hold harmless Contractor, its affiliates, and their respective officers, directors, managers, employees, and agents from and against any claims, losses, costs, fees, damages, or other liabilities arising from or claimed to be caused by this Agreement or Contractor’s work under this Agreement, except to the extent such liabilities arise from or are caused by the gross negligence or willful misconduct of Contractor, its affiliates, or their respective officers, directors, managers, employees, or agents.
8. TERMINATION
This Agreement commences on the date it is signed by both parties and continues until terminated by a writing signed by both parties. Unless otherwise stated, each written proposal from Contractor set forth in a Statement of Work, if not accepted by Client, expires 30 days after Contractor submits to Client. Once a Statement of Work is accepted by Client and Contractor’s work on a project commences, Client may terminate Contractor’s work prior to completion only upon 30 days’ prior written notice. In such event, Client shall promptly pay in full all then outstanding invoices plus any final billing thereafter provided by Contractor to Client. Contractor may terminate its work at any time without notice to Client if any payment is past due for more than 30 days.
9. RELATIONSHIP OF THE PARTIES
Contractor acts as an independent contractor and not as Client’s agent, representative, or partner. Contractor and Client have no authority to act on one another’s behalf, and each is responsible for payment and supervision of its own personnel. Unless otherwise agreed, staffing is at Contractor’s discretion. Contractor may utilize subcontractors as it deems necessary.
10. NOTICES
Unless Contractor specifies otherwise, all notices to Contractor with respect to this Agreement shall be directed to:
TOVUTI, LLC
Attn: CEO
775 S Rivershore Ln Suite 200
Eagle, ID 83616
Unless Client specifies otherwise, notices to Client will be via email and will be directed to the Client representative who engages Contractor.
11. MISCELLANEOUS
This Agreement, including all Statements of Work and any other exhibits or addenda, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
This Agreement is governed by the internal laws of the State of Idaho (without giving effect to its choice of law principles). These terms and conditions can only be waived in whole or part in a writing signed by the waiving party. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any portion of this Agreement or is determined to be invalid or unenforceable, the remaining provisions shall nonetheless continue in full force and effect. There are no third-party beneficiaries to this Agreement.
You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise, without Contractor’s prior written consent (not to be unreasonably withheld). Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Prior to instituting any sort of legal proceeding against one another, Contractor and Client shall attempt to resolve their disagreement by good faith negotiation. Failing a negotiated resolution, any dispute shall be resolved by courts located in the county in which Contractor’s principal offices are located. Client shall pay on demand all of Contractor’s reasonable attorneys’ fees and other costs incurred by Contractor to collect any amounts due and payable under this Agreement. In any action arising out of or related to this Agreement, if the defendant is determined by a court of competent jurisdiction to have prevailed regarding the action, then the defendant shall be entitled to an award of its reasonable attorneys’ fees and costs of defending the action.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.