THIS SERVICE AGREEMENT (“Service Agreement”), between the customer named above (“Customer”) and IEVOLVE, Inc. (“IEVOLVE”) is effective when signed by both Customer and IEVOLVE (the “Effective Date”), and shall continue in effect as long as the services are provided to Customer by IEVOLVE under this Service Agreement. This Service Agreement is part of the Master Agreement executed by the parties herewith.
1. Scope of Work
a. Recitals. The above identification of parties and recitals are true and correct.
b. Scope of Work. IEVOLVE shall assign a consultant (the “Consultant”) who shall perform certain technical consulting services as may be requested by Customer (the "Contract Services").
c. Management Reporting. Consultant shall provide Customer with periodic reports as warranted by the progress of the Contract Services as determined by Consultant.
d. Status. Consultant shall provide the Contract Services as an independent contractor.
e. Term. This Service Agreement shall extend from the Effective Date until terminated as provided under Article 4.
f. Cooperation. Customer hereby acknowledges that successful performance of the Contract Services by Consultant shall require Customer to cooperate with Consultant in good faith and to provide information as may be requested by Consultant from time to time. Customer hereby agrees to provide such good faith cooperation and information.
g. Facilities. The Contract Services may be performed at the office facilities of Customer, remotely dialed into Customer’s equipment, or through phone support as determined by Consultant.
h. Acceptance of Services. The Contract Services shall be deemed delivered by Consultant and accepted by Customer upon performance. Retainer (as defined below) is good for Contract Services only and cannot be applied toward hardware or software purchases.
2. Charges, Payment and Taxes
a. Labor Rates. The Contract Services shall be performed on a time-and-materials/labor-hour basis at an hourly labor rate as set forth in paragraph 6.
b. Travel Costs. Customer will pay standard labor rates for travel time to the Customer’s site. Travel time fees are one way to the Customer from IEVOLVE’s office. No additional tolls or parking will be charged to the Customer.
c. Invoices and Retainers. Consultant shall submit invoices for Contract Services rendered and costs incurred immediately following when the Contract Services were rendered. Customer shall pay such invoice within 30 calendar days in which the invoice is received. Retainer must be paid in advance in order to receive discounted rate and will be automatically renewed at 10% retainer balance. Customer can choose to terminate this Service Agreement when Retainer is depleted as described in Article 4.
d. Late Charges. Any invoiced amount which is not paid by Customer as provided herein shall be increased by a late charge equal to 3% for each 30 days (or portion thereof) in which such invoiced amount is not paid. Notwithstanding any provision or interpretation to the contrary, Customer’s failure to pay an invoice within 30 days shall constitute a material breach of this Service Agreement and shall be sufficient cause for the termination of this Service Agreement by Consultant in accordance with paragraph 4 below.
e. Insurance. Customer and Consultant shall each maintain at their own expense all necessary insurance.
3. Warranty
a. Consultant hereby represents and warrants that the Contract Services shall be performed on a best efforts basis.
b. Warranty Limitation. THE WARRANTY SET FORTH IN PARAGRAPH 3(a) IS A LIMITED WARRANTY AND IS THE ONLY WARRANTY MADE BY CONSULTANT UNDER THIS AGREEMENT. EXCEPT FOR THE WARRANTY MADE BY CONSULTANT IN PARAGRAPH 3(a), CONSULTANT HEREBY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
c. Limitation of Damages. Consultant shall not be liable to Customer under this Service Agreement for any consequential, exemplary, incidental or punitive damages, regardless of whether Consultant has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable. Notwithstanding any provision to the contrary, the liability of Consultant for any reason and for any cause of action whatsoever under this Service Agreement shall be limited to the amount of money received by Consultant pursuant to this Service Agreement.
d. Force Majeure. Consultant shall be not liable to Customer for failing to perform its obligations under this Service Agreement because of circumstances beyond the control of Consultant. Such circumstances shall include, but not be limited to, any acts or omissions of any government or governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, delays in transportation or deliveries of supplies or materials, acts of God, or any events reasonably beyond the control of Consultant.
e. Indemnification. Customer shall indemnify, defend and hold Consultant harmless against any liability arising from or in connection with any use of any materials or information developed by Consultant for Customer or performance of the Contract Services. This Section shall survive termination of this Agreement.
4. Termination
a. Termination Limitation. This Service Agreement shall only be terminated as provided under this paragraph 4.
b. Termination for Cause. If a party violates its obligations under this Service Agreement, the other party may terminate the Service Agreement by sending a termination notice describing the noncompliance to the other party (the “Termination Notice”). Upon receiving the Termination Notice describing the noncompliance, the non-complying party shall have five (5) days from the date of such Termination Notice to either cure any such noncompliance or, if the noncompliance cannot be cured within such five (5) day period, to begin curing such noncompliance in good faith. If such noncompliance is not cured within the required five (5) day period, or, if the noncompliance cannot be cured within such five (5) day period, the non-complying party does not make a good faith effort to begin curing such noncompliance within said five (5) day period, the party providing Termination Notice describing the noncompliance shall have the right to terminate this Service Agreement as of the fifteenth (15th) day after the date of the Termination Notice.
c. Return of Materials. Upon the termination of this Service Agreement, Consultant shall return to Customer any and all materials belonging to Customer which are in the possession of Consultant as of the date of Termination.
5. Miscellaneous
a. Relationship of the Parties. It is agreed that the relationship of the parties is primarily that of Consultant and Customer. Nothing herein shall be construed as creating partnership, employment relationship, or agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party maintains its separate identity.
b. Arbitration. Any controversy or claim arising out of or relating to this Service Agreement, or breach thereof, shall be settled by arbitration.
c. Assignment. Assignments of rights hereunder without the prior written consent of Consultant shall be void.
d. Complete Agreement. This Service Agreement is the sole agreement between the parties relating to the subject matter of this Service Agreement and supersedes all proposals or prior agreements (oral or written) and all other communications between the parties relating to the subject matter of this Service Agreement.
e. Assurances. Each party hereby represents and warrants that all representations, warranties, recitals, statements and information provided to each other under this Service Agreement are true, correct and accurate as of the date of this Service Agreement to the best of their knowledge.
f. Amendments and Modifications. A waiver, alteration, modification or amendment of this Service Agreement shall be void unless such waiver, alteration, modification or amendment is in writing and signed by the respective parties hereto.
g. Severability. If a provision of this Service Agreement is rendered invalid the remaining provisions shall remain in full force and effect.
h. Captions. The headings and captions of this Service Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Service Agreement or any particular section, paragraph, or provision.
i. Counterparts. This Service Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
j. Governing Law. This Service Agreement shall be governed by the laws of the New York State.
k. Notice. All Termination Notices and communications shall be in writing and shall be delivered by Certified Mail or by hand to the address set forth below for each respective party.
l. Pronouns/Gender. Pronouns shall refer to the masculine, feminine, singular or plural as the context shall require.
k. Waiver. Waiver of a breach of this Service Agreement shall not constitute a waiver of any other breach. Failure to enforce any provision of this Service Agreement shall not constitute a waiver or create an estoppel from enforcing such provisions.
6. Charges, Payment and Taxes
a. Retainer. Customer agrees to submit a prepaid retainer to IEVOLVE (the “Retainer”). The Retainer is non-refundable and must be paid in advance in order to Customer to receive a discounted rate. The parties agree that the Retainer will be automatically renewed when there is a 10% balance.
b. Overtime. Customer will pay rates for normal and off-hours services as described in this Section. Calendar week will be represented as Sunday 00.01 hours to Saturday 24.00 hours. Contract Service will be based on normal business hours of Monday through Friday 8:00am – 5:30pm. Customer agrees to pay 1.5 times the service rate for after hours support and 2 times the service rate for Sundays or Holidays when after hours support exceeds normal hours work in one calendar week.
c. Service Rate. Customer will pay hourly rates for services provided.
d. Holiday Schedule. IEVOLVE’s current holiday schedule includes the following holidays: New Years Day, Good Friday, Memorial Day, Independence Day, Labor Day, Thanksgiving Thursday and Friday and Christmas.
e. Service Minimums. Service will be based on the following minimum time intervals:
Phone Support/Web Case/Call Back ¼ Hour
Dial in/Remote Support ½ Hour
Hour Emergency/Cell Phone Support ½ Hour
After Hours Weekend Support 1 Hour
Onsite Support that requires travel 1 Hour
