Business Actualization Terms of Service
1. Services. Consultant will provide to Client the Services outlined above pursuant to this Agreement’s terms. If changes need to be made to the Services or additional services added, the parties will evidence such changes by entering into an additional agreement. The terms and conditions of any respective agreement shall govern the Services in each respective agreement.
2. Term. This Agreement’s initial term shall run 90 days from the Effective Date (“Initial Term”) for all services except website services. Website services have a term of twelve months (12) from the first billing date which coincides with the website launch, or "go-live date". After the Initial Term, this Agreement shall remain in full force and effect until (a) Consultant completes all Services and Client pays all amounts due and owing in full, or (b) either party terminates this Agreement with 30-days’ written notice to the nonterminating party.
In addition, Consultant reserves the right to terminate this Agreement immediately, and without notice, for nonpayment of any Service Fees, as defined below, or expenses. Regardless of why or who terminates this Agreement, Client is responsible to pay all fees and costs due and owing to Consultant through the termination date.
3. Service Fees and Costs. Client is responsible to pay Consultant for all Service Fees and third-party costs, if any, incurred during the provision of the Services. Client also acknowledges that specific third-party vendors and services may become unavailable in the future due to circumstances outside Consultant’s control. Consultant retains the right, in its sole discretion, to substitute third-party vendors and services as necessary to continue to provide the Services.
4. Payment Terms.
a. Onboarding Fee. Any required Onboarding Fee is due upon execution of this Agreement and is nonrefundable.
b. Management Fees. Client will be billed monthly for all recurring Management Fees beginning on the Project Start Date.
c. Third-Party Accounts. Some of the Services require Consultant to set up third-party accounts on behalf of Client. Although Consultant will establish the accounts, Client is responsible for the payment for all third-party services.
d. Credit Card Authorization. Upon execution of this Agreement, Client will complete and return Consultant’s credit card authorization form. Client expressly authorizes Consultant, or its third-party merchant, to charge Client’s credit card for Client’s third-party accounts, the Onboarding Fee and monthly recurring Management Fees. Once Consultant has established the third-party accounts and Client’s account, Consultant will destroy Client’s credit card authorization.
e. Late Payment Penalty. Client is responsible for keeping its credit card information updated at all times. If Consultant is unable to charge Client’s credit card, a late penalty of one and a half (1.5) percent per month (18 percent per annum) will be assessed for any balance outstanding after thirty (30) days from the billing due date. Client understands and agrees that any balances outstanding after thirty (30) days may be sent to collections. Client agrees to reimburse Consultant for all fees and costs associated with such collection, including legal fees and costs, and pre- and post-judgment expenses of collection, incurred by Consultant.
f. Upon notice to Client, Consultant may increase Consultant’s subscription pricing by an amount not to exceed fifteen (15%) percent annually.
5. Travel Expenses. If Consultant must travel to Client’s site to provide the Services, Consultant will obtain Client’s prior written consent prior to incurring any reimbursable travel expenses.
6. Client Responsibilities. Client’s participation may be required to implement and deliver the Services. Client expressly agrees, at its sole expense, to provide all business and technical support and information requested by Consultant. Such support includes, but is not limited to: (a) providing all 1. requested information within two (2) business days of receiving Consultant’s request for such information, unless otherwise agreed to in writing, and (b) ensuring all Client software and hardware meets the minimum version and system requirements necessary to provide the Services. Client’s failure to perform under this paragraph shall breach this Agreement and Consultant may cease providing those Services adversely affected by Client’s nonperformance.
7. Warranties. Client warrants that it has the right and authority to use any Client-provided information. Client agrees to indemnify and hold Consultant harmless against any claims that Client-provided information infringes or violates a third-party’s rights. This paragraph shall survive this Agreement’s termination.
8. Work Product Ownership. Upon receipt of payment in full for all Services and costs, Consultant assigns all right, title and interest in and to all Work Products to Client. The rights hereby assigned include all the rights in the Work Products of every kind, nature and description, including, without limitation: (i) all patents and patent applications and the right to secure patent grants thereon throughout the world in Client’s name or otherwise and the right to renew such grants; (ii) all copyrights and the right to secure copyright registrations thereon throughout the world in Client’s name or otherwise and the right to renew such registrations; (iii) all trademarks and the right to secure trademark registrations thereon throughout the world in Client’s name or otherwise and the right to renew such registrations; (iv) any and all publication rights therein in whatever form; (v) the right to use, license, exploit, sell or otherwise dispose of such Work Products in any manner and for any purpose; (vi) the rights in any collections, layouts or derivatives of such Work Products; (vii) all originals, copies and reproductions of such Work Products; and (viii) any and all subsidiary rights in such Work Products. “Work Products” shall mean all outputs fixed in a tangible medium and created by Consultant’s providing the Services but excluding all third-party content.
9. Publicity. Client grants Consultant the right to reference Client’s Services’ performance and results in Consultant’s marketing and advertising materials. Such references, however, shall be anonymous in nature, unless Client agrees in writing to allow Consultant to reference Client by name.
10. Limited Liability. Client expressly agrees that Consultant’s total damages liability to Client shall not exceed all Service Fees, minus third-party costs, paid to Consultant. In no event, is Consultant liable to Client for (a) the loss or damage of any Client data or information relating to the provision of the Services, or (b) Client’s loss of profits, incidental or consequential damages under this Agreement, whether based in contract, tort or statutory law.
11. Non-disparagement. The parties agree that at no time will it engage in any vilification of any other party and shall refrain from making any false, negative, critical, or disparaging statements, implied or expressed, concerning any other party. The parties further agree to do nothing that would damage another party’s business reputation or goodwill; provided, however, that nothing in this section shall prohibit a party’s disclosure of information that is required to be disclosed in compliance with applicable laws or regulations or by order of a court or other regulatory body of competent jurisdiction. This term survives this Agreement’s termination.
12. Confidential Information. For purposes of this Agreement, “Confidential Information” includes, but is not limited to, this Agreement’s terms, and any party’s financial statements, reports and information; marketing concepts, plans and information; contracts; customer lists; vendor lists, employee lists; price lists; product designs; specifications; software; assembly and manufacturing processes; workflow; formula; models; drawings; compilations; methods; inventions; devices; tools; programs; source code; object code; techniques; and other technical information and know-how; whether oral or in writing or in some other form, relating to the provision of the Services, regardless 1. of source. Confidential Information does not include: (i) information that is now or hereafter comes into the public domain through no fault of a party; (ii) information which is disclosed to a party by a third party who has the lawful right to make such a disclosure; (iii) information that has been independently developed by a party prior to receipt of and without reference to any other party’s Confidential Information; (iv) information that has been approved by a party for release by written authorization; (v) information that has been furnished by a party to a third party without written restriction on disclosure; (vi) information that is already known to a party at the time it is disclosed by the other party; and (vii) information that has been disclosed pursuant to a requirement of a governmental agency or of law.
a. Nondisclosure. The parties agree to maintain as confidential all Confidential Information. Neither shall, directly or indirectly, disclose any Confidential Information to any third party without prior written consent, nor shall any party use any of such Confidential Information for its own benefit (except for the purpose of providing the Services) or for the benefit of any third party.
b. Return of Confidential Information. Upon this Agreement’s termination, or upon earlier request from the other party: (i) the parties will either destroy or return any Confidential Information which is in tangible form, including any copies, and will destroy all abstracts, summaries thereof or reference thereto in the parties’ documents, and certify in writing to the other party that such destruction has been done; and (ii) neither party, nor any of its directors, employees, agents or representatives, will use any of the Confidential Information in furtherance of its or their respective businesses, or for any other purposes whatsoever.
c. Breach. The parties understand and agree that each party will disclose Confidential Information in reliance upon the agreements made herein by the other party. Any breach of any provisions hereof by one party shall cause irreparable harm and damage to the other party. Each party hereby expressly agrees that the non-breaching party shall be entitled to enjoin, without the necessity of posting bond, any actual or threatened violation of any of the provisions of this Agreement. In addition to injunctive relief, the non-breaching party may recover damages for any loss caused by any violation of any of the provisions of this Agreement. This provision shall not, however, be construed as a waiver of any other rights which the non-breaching party may have for damages or other relief. In any action brought to enforce any of the provisions of this Agreement, the non-breaching party shall be entitled to reasonable attorney fees and costs.
13. Mediation and Arbitration. Any controversy or claim arising out of this Agreement or the interpretation of any of the provisions in this Agreement shall be resolved first by mediation, and if mediation should fail, then by binding arbitration. The mediator and arbitrator shall be jointly selected by the parties, and any mediation or arbitration fees shall be born equally by the parties.
14. Attorneys’ Fees and Costs. If any act at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees and costs.
15. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all previous communications, proposals, representations, and agreements, whether oral or written, relating to the subject matter hereof.
16. Binding Effect. Client acknowledges and agrees that this Agreement will be binding upon Client's heirs, executors, administrators, and other legal representatives.
17. Assignment. Neither this Agreement, nor any rights or duties arising under it, may be assigned, delegated, or subcontracted by Client to another without Consultant's prior written consent. Client acknowledges and agrees that Consultant may freely assign this Agreement.
18. Severability. Client agrees that, should any provisions of this Agreement be determined by a court of competent jurisdiction to violate or contravene any applicable law or policy, such provision will be severed and modified to the extent necessary to comply with the applicable law or policy, and such modified provision and the remainder of the provisions hereof will continue in full force and effect.
19. Captions. The captions and headings used throughout this Agreement are for ease of reference only, and do not expand, limit or in any way affect the meaning or interpretation of any provision.
20. Waiver. Client agrees that any delay or omission on the part of Consultant to exercise any right under this Agreement will not operate as a waiver of such right or any other right; and that a waiver of any right of Consultant hereunder on one occasion will not be construed as a bar to or waiver of any right on any future occasion.
21. Amendment. Except in regard to the Scope of Services, Service Fees, Management Fees and Onboarding Fees, Consultant retains the right to update this Agreement’s terms in its sole discretion at any time and with or without notice to Client. Any changes to the Scope of Services, Service Fees, Management Fees and Onboarding Fees shall require a written instrument setting forth such changes signed by both parties.
22. Governing Law, Jurisdiction and Venue. The parties agree this Agreement shall be governed by and construed in accordance with the laws of the State of Pennsylvania without regard to its conflict of law provisions. The parties further agree to be subject to the personal and subject matter jurisdiction and venue of the federal and state courts for the State of Pennsylvania.
23. Notice. All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be considered properly given and effective upon receipt when: (a) deposited in the postal mail, certified, postage prepaid; (b) delivered in person; (c) sent by overnight delivery by a nationally recognized express transportation company; (d) sent by facsimile with a transmission confirmation; or (e) sent by electronic mail with a delivery confirmation; and addressed to the appropriate party, unless by such notice different contact information shall have been designated.
24. Multiple Counterparts. This Agreement may be executed in several counterparts, all of which taken together shall constitute one single Agreement between the parties. The parties also agree that execution of this Agreement by facsimile or e-signatures shall be valid and binding and considered the same as original signatures.
By signing this Agreement, you, the Client, state that you have read this Agreement. Your signature, electronic or otherwise, forms a binding enforceable contract, and you expressly agree to be bound by this Agreement’s terms.
