RECITALS

1. Agency is a consulting firm;

2. Client desires to engage Agency to implement solutions for use in its business on the terms and conditions set forth herein, and Agency desires to provide such development service to Client; and

3. Agency and Client agree that this Agreement shall govern all current and future service Consultant provides to Client.

 

AGREEMENT

Now, therefore, in consideration of the mutual promises herein and other valuable consideration, the parties agree as follows:

 

1. Services

Agency agrees to perform services for Client as described in one or more Statements of Work. Any conflict or inconsistency between the provisions of this Agreement and any executed Statement of Work shall be resolved by giving precedence to the executed Statement of Work under which the services are to be performed and then to this Agreement.

 

2. Compensation for services

In consideration for Agency’s Services, Client shall pay Agency as set forth in any applicable Statement of Work. In addition, Client shall reimburse Agency for all reasonable and documented out-of-pocket expenses incurred by Agency, its employees, agents, and subcontractors, in performing the Services. Agency will send Client periodic statements for fees and expenses incurred. All fees and expenses incurred shall first be paid from the Retainer Amount. Client will pay Agency’s statement for fees and expenses incurred within thirty (30) days after each statements date. Client agrees to pay interest at the rate of 1.5% per month (18% per annum) on any balance unpaid after thirty (30) days from the statement’s date. Failure to pay any statement after thirty (30) days from the statement date shall be, at the sole discretion of Agency, cause for termination of this Agreement.

 

Canceled or returned check fee is $40 per occurrence.

 

3. Retainer

Client agrees to deposit the sum of the amount specified on the Statement of Work prior to the commencement of any Services rendered to Client by Agency.

 

4. Term

This Agreement shall be effective as of the date hereof and shall terminate on the completion of all Services to the mutual satisfaction of the parties; Client’s obligation to make the payments required by paragraph 2 above shall survive the termination of this Agreement until paid in full or otherwise mutually agreed to by the parties in writing. Either party may terminate this Agreement for any reason upon thirty (30) days prior written notice to the other, provided that if Client terminates this Agreement before the completion of Services here-under.

 

5. Contact persons

The parties hereby designate the individuals listed on the applicable Statement of Work as their respective Contact Persons. To the fullest extent possible, communication regarding the Services shall be channeled through the Contact Persons. In the event that communication through the Contact Persons is not possible or practical, communication regarding the Services shall be channeled through the Project Team Members as defined in the Statement of Work, the roster of which is subject to change at any time.

 

6. Cooperation of client

The Services described in the Agreement are based on information provided by the Client. Client undertakes that all documents, information, and data necessary for Agency to perform the Services will be made available to Agency in a timely fashion. Client will make available such employees of its organization as are necessary to assist Agency in fulfilling its obligations under this Agreement. Ordering of third party services, if any, will be affected by Client in consultation with Agency. Client undertakes the adequate and timely introduction of Agency employees and agents within Client’s organization and, if required by law, will obtain all necessary approvals of the applicable governing body in connection with the performance of Services. In case any or all of the above conditions are not complied with, not complied with properly or not timely complied with, or if Agency has to interrupt Services for reasons not attributable to Agency’s negligence or willful misconduct, the period of completion set forth in the Agreement shall be automatically extended for such additional time as shall be necessary to perform the Services, and any and all additional costs resulting therefrom shall be the responsibility of Client.

 

7. Agency’s personnel

Unless otherwise stated in the applicable Statement of Work, Agency shall have sole discretion over the identity of its personnel used to provide the services; provided, that Agency shall ensure that Services will be performed only by reliable, adequately trained, experienced and skilled personnel in sufficient number and within the timetable set forth in this Agreement. Where specific personnel is specified in an applicable Statement of Work, Agency shall use reasonable efforts to provide the Services using that personnel; provided, that Agency is entitled to replace such personnel with personnel of equivalent qualification and experience at any time.

 

8. Solicitation of personnel

Neither Client nor Agency shall solicit, approach, or hire any of the other’s employees, agents or subcontractors for the purpose of employment or any form of outside work so long as this Agreement, and any applicable Statement of Work is in effect and for a period of one (1) year thereafter, except with written consent of the other party.

 

9. Non-exclusivity

Client agrees that Agency’s personnel providing Services to Client under this Agreement may perform similar services from time to time for other persons, firms or entities, and this Agreement shall not prevent Agency from using such personnel for the performance of such similar services for such other persons, firms or entities. Agency recognizes that Client may engage other consultants to perform similar services from time to time, and this Agreement shall not prevent Client from using such consultants.

 

10. Progress reports

Agency will submit interim progress reports at such times and in such reasonable detail as Client may reasonably request.

 

11. Confidential information

Each of Client and Agency (the “Receiving Party”) shall hold in trust for the other party hereto (the “Disclosing Party”), and shall not disclose to any person, firm or entity other than the Receiving Party’s employees and agents who have a need to know such information in order to perform the Services and shall not use in any way detrimental to the Disclosing Party any confidential or proprietary information of the Disclosing Party (“Confidential Information”). Without limiting the generality of the foregoing, “Confidential Information” includes any and all information relating to the Disclosing Party’s products, services, research, development, trade secrets, marketing and business plans, strategies, customers, management and personnel, but does not include information in the public domain other than by reason of a breach of these general terms and conditions. In the event the Receiving Party receives a subpoena or court order to disclose any Confidential Information, the Receiving Party shall deliver prompt written notice to the Disclosing Party and shall cooperate with the Disclosing Party’s attempts to obtain a protective order or other similar protection for the Confidential Information. This provision shall survive any termination of the Agreement for a period of two (2) years.

 

12. Independent contractor

Nothing in this Agreement shall be construed to create an employment relationship, partnership or joint venture between Client and Agency or its employees, agents or subcontractors. Agency, its employees, agents, and subcontractors shall be deemed to be at all times, independent contractor of Client. Neither Agency nor any of its employees, agents or subcontractors shall represent that it or they are employees of Client. It is Agency’s sole obligation to report as income all compensation received from Client pursuant to this Agreement. Agency further agrees that Client shall not be obligated to pay withholding taxes, social security, unemployment taxes, disability insurance premiums, or similar items, in connection with any payments made to Agency pursuant to the terms of this Agreement.

 

13. Ownership of work product

All software code, plans, diagrams, models and other work product created or developed by Agency in the course of performing Services here-under (“Work Product”), and all intellectual property rights thereto, are the sole and exclusive property of the Client upon payment for work rendered. However, certain work which is not specific to the business of the Client, that is deliverables which don’t specifically relate to the tasks at hand, are owned by the Agency yet given perpetual license to the Client.

 

14. Representations and warranties

1. In general. The warranties set forth in this agreement are exclusive and are in lieu of all other warranties, express or implied, including but not limited to, the implied warranties of merchant-ability and fitness for a particular purpose. Except when otherwise stated in writing the materials produced under the terms of this agreement are provided to client “as is,” that is, without warranty of any kind, either expressed or implied. The entire risk as to the quality and performance of the software and/or services provided under this agreement rests solely with the client. Should the software or program prove defective, the client solely assumes the cost of all necessary servicing, repair or correction, including without limitation any “debugging.” Except as otherwise stated below, neither party makes any warranties of any kind or nature, whether express or implied, including, but not limited to, warranties related to information or business advice provided, warranties related to outcomes based on information or advice provided, warranties of merchant-ability or mercantile quality, warranties of fitness for a particular purpose or use, warranties or conditions arising by statute or otherwise in law, or warranties of any products or services provided by third-party vendors.

2. Authority; no conflict. Each party warrants that it is authorized to enter into this Agreement and to perform its obligations here-under, and that its performance here-under shall not conflict with, limit or be contrary to any other agreement.

3. Professional service. Agency warrants that it will perform all Services under this Agreement with the degree of care and skill ordinarily exercised by members of Agency’s profession.

4. No infringement. The parties represent and warrant that their disclosure and delivery of any code, information, documents, software or any other materials, and use thereof, as contemplated by this Agreement, will not knowingly infringe or violate any proprietary right of any third party, including, but not limited to: any copyright, patent or trade secret.

5. Non-interference with business. The parties represent and warrant that during the term of this Agreement and for one-year immediately following termination of this Agreement, the parties agree not to directly or indirectly compete or interfere with each other’s business in any manner. Additionally, and without limiting the foregoing, during the term of this Agreement and for a period of one year thereafter, Agency and Client agree not to, directly or indirectly solicit or induce or attempt to persuade any employee, independent contractor, vendor, supplier, outsourced third-party or director of the other to terminate an employment, contractual or other relationship, or to enter into a relationship with the other party, or into any business organization in the other party may be directly or indirectly involved. The term “enter into a relationship” shall include, but not be limited to, acting as a paid or unpaid director, officer, agent, employee of, or consultant to, or acting or participating as owner, partner, manager, member, or shareholder. During and for one year immediately following termination of this Agreement, Agency and Client further agree not to (a) directly or indirectly contact any person or entity disclosed by one party to the other for the purpose of taking advantage of a business opportunity, (b) otherwise circumvent a relationship with or establish a relationship with a party with whom the other party already has a relationship or foreseeable relationship with, or (c) seek to establish any rights, including but not limited to intellectual property rights, anywhere in the world in conflict with the other party’s pre-existing, herein established, or hereafter established intellectual or other property or proprietary rights.

 

15. Limitation of liability

The parties agree that neither party’s liability for damages from any cause of action whatsoever, regardless of the form of action, will exceed the fees paid or to be paid by client pursuant to an applicable statement of work under this agreement. In no event shall either party be liable for lost prof- its or any indirect, incidental, consequential or special damages of any nature whatsoever, including, without limitation, damages arising from loss of use of any software or hardware, costs of procurement of substitute products or services, lost data, lost profits or revenue, or for any claim or demand by any third person, arising out of or related to the agreement or the performance or breach thereof, even if advised of this possibility.

 

16. Notices

All notices or other communications required or permitted to be given to a party to this Agreement shall be in writing and shall be (a) personally served, or (b) sent by certified mail, return receipt requested; or (c) sent by overnight express courier service providing a written confirmation of delivery to the other party at the last known address of the party so served, subject to a notice of change of address of the other party to this Agreement.

 

17. Entire agreement; modification

These are the exclusive and total terms and conditions of the Agreement between tell studios and the Client and may only be modified or amended by a writing signed by both parties.

 

18. Force majeure

In the event of “force majeure” (as defined below), Agency may terminate this Agreement without liability to Client, provided Agency refunds all amounts which Client has theretofore paid to Consultant for Services not fully performed. For purposes of the Agreement, “force majeure” means circumstances or occurrences beyond Agency’s reasonable control, whether or not foreseeable at the time of signing this Agreement, in consequence of which Agency cannot reasonably be required to complete the Services or otherwise perform its obligations under this Agreement. Such circumstances or occurrences include, but are not limited to: acts of God, war, civil war, insurrection, fires, floods, labor disputes, epidemics, governmental regulations and/or similar acts, embargoes, and non-availability of any permits, licenses and/or authorizations required by governmental authority.

 

 

19. Dispute resolution

Any disputes, controversies, or claims arising out of or in connection with or relating to the rights of the parties to this Agreement, or any breach or alleged breach thereof, and any claim either party violated any state or federal laws or doctrine, or allegations of tortious activity against or with respect to the opposite party shall, on the request of either party, be submitted to and settled by arbitration in the State of Michigan, under the prevailing arbitration law, in the County of Oakland pursuant to alternative dispute resolutions rules and standards as directed by the Oakland County Circuit Court. Notice of demand for such process shall be filed, in writing, with the other party to this Agreement, within a reasonable time after the claim, dispute or other matter in question arose, but in no event longer than the applicable Michigan statute of limitations. The failure of either party to respond within 14 days with an agreement to arbitrate shall be cause to seek an order of the Circuit Court of the County of Oakland to order such arbitration. All issues between the parties to this Agreement shall be adjudicated pursuant to the laws of the State of Michigan. Cost of initiating arbitration shall be borne equally by the parties; provided, however, each party shall bear the cost of their own respective experts, evidence and hearing fees; provided, further, however, subsequent to hearing, any prevailing party shall be entitled to recovery of attorney’s fees and costs as found by the arbitrator. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction for purposes of enforcement. Notwithstanding anything to the contrary, to the extent that any claim between the parties is deemed a claim for equitable or declaratory relief, to such limited extent, the Circuit Court for the County of Oakland, State of Michigan shall assume jurisdiction for such resolution.

 

20. General provisions

1. Michigan Law. The laws of the State of Michigan shall govern the validity, performance, and enforcement of this Agreement.

2. Entire Contract. This Contract contains the entire agreement between the parties and supersedes and annuls all other agreements, contracts, promises or representations, whether written or oral. Each of the parties hereto further declares and represents that no promises, agreements or representations have been made in connection with this Contract, nor have any promises, agreements or representations been relied upon by either party in executing this Contract, except as expressly set forth herein. Both Tell and Client hereby declare that they have read this Contract and that they fully understand its terms and conditions.

3. Modifications. No subsequent agreements, contracts, promises or representations shall be binding and effective between the parties unless set forth in writing and signed by both Tell and Client.

4. Binding Effect. This Contract shall be binding upon the parties and their successors and assigns.

5. Severability. If any provision of this Agreement, or part thereof, is determined by a court or site of competent jurisdiction (“Court”) to be contrary to law, the remainder of this Agreement shall constitute the Agreement between the parties.

6. Recitals. The recitals are fully incorporated and made part of this Contract.

 

21. Entire Agreement

This Agreement sets forth the entire agreement of the parties and replaces and supersedes any previous agreement between the parties on the subject, whether oral or written, express or implied.

 

In witness whereof, the parties hereto have executed this Agreement the day and year first above written and shall be interpreted under the laws of the State of Michigan

 

By accepting this agreement or by expressing your confirmation in writing (on paper or in electronic form), you agree to all the terms and conditions of this contract, which is effective from the most recent date that appears here.