Master Consulting Services Agreement
Flow.digital Master Consulting
Services Agreement
Master Consulting Services Agreement
Last Updated: June 13, 2023
This Master Consulting Services Agreement ("Agreement") is effective as of the effective date of the signed order form (“Order Form” and “Effective Date”), by and between Flow Digital Inc, a New York corporation with offices located at 100A Broadway #266, Brooklyn NY 11249 ("Consultant"), and the client who signed the Order Form (“Client”) (individually, “Party,” and collectively, “Parties”). The Order Form is incorporated herein. In the event of conflict between this Agreement and the Order Form, the latter shall control.
Section 1. Definitions
"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or otherwise, whether at law, in equity, or otherwise.
"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person.
"Client Materials" means all materials and information, including documents, data, specifications, software, content, and technology that are provided to Consultant by or on behalf of Client in connection with this Agreement.
"Deliverables" means the Software, Documentation, and other work product that Consultant is required to deliver to Client under this Agreement.
"Consultant Personnel" means all individuals involved in the performance of Services as Consultant’s employees or independent contractors.
"Documentation" means any and all manuals, instructions, specifications, and other documents and materials that Consultant provides or makes available to Client in any medium and which describe the functionality, components, features, or requirements of software implementation, including the installation, configuration, integration, operation, use, support, or maintenance thereof.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
"Losses" means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees, and the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
"Representatives" means, with respect to a party, that party's and its Affiliates' employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
"Work Product" means the software, Documentation, specifications and Deliverables that Consultant creates in connection with the Services.
Section 2. Engagement of Consultant
2.1 Services. Pursuant to the terms and conditions of this Agreement, Client hereby engages Consultant, and Consultant hereby accepts such engagement, to deliver services ordered by the Client in the Order Form, referencing this Agreement ("Services").
2.2 Changes to scope of work. Either Party may, at any time during the Term, request in writing changes to the Services (“Change Request”). The other Party shall evaluate the Change Request and submit a written response thereto within seven (7) days of its receipt of the Change Request. Consultant shall communicate to Client the impact that any change will have on deadlines and cost of deliverables. If both Parties agree to the Change Request, a detailed summary of the change, signed by both parties, shall be attached to this Agreement as an exhibit. No changes will be effective unless and until memorialized in writing, signed by both Parties, or agreed to verbally by both parties.
2.3 Project management. Each Party shall, throughout the Term, maintain within its organization a project manager to serve as such Party's primary point of contact for day-to-day communications, consultation, and decision-making regarding the Services. Each such project manager shall be responsible for providing all day-to-day consents and approvals on behalf of such Party under this Agreement.
2.4 Training. Consultant shall provide Client training with respect to its Services on as-needed basis.
2.5 Reports. Upon request by the Client, Consultant shall provide to Client written reports summarizing the Services rendered. Consultant may also provide such reports on its own initiative on as-needed basis.
2.6 Assignment of personnel. Consultant shall assign in its sole discretion the personnel to deliver the Services.
Section 3. Client Obligations
3.1 Underlying software. As applicable, Client shall deliver to Consultant a copy of all documentation and license agreements related to the Underlying Software, credentials, and/or website or other information specifying where Client can access such documentation before Consultant starts providing Services. Client shall use its own efforts and resources acquire the Underlying Software. Consultant shall not be held liable to Client for any errors, failures or defaults in the Underlying Software.
3.2 Client resources and cooperation. Client agrees to make available to Consultant all operating system software, third-party application software and other system components necessary to enable Consultant to provide Services. Further, Client shall ensure that its Application Programming Interface is accessible to Consultant and is in working order. Client shall participate with suitably qualified and authorized personnel in all meetings scheduled with Consultant, timely respond to Consultant’s requests for feedback or testing, and provide all cooperation and assistance Consultant reasonably requests to perform its Services. Client authorizes Consultant to record all meetings the Parties will hold related to Services. Prior to Consultant starting to provide Services or Work Product under this Agreement, Client shall fully inform Consultant regarding any and all programs, applications, or any other technology, adaptations and coding thereof, that may interfere with Consultant’s work.
3.3 Effect of client’s failure or delay. Consultant shall not be held liable for delay or failure to preform Services to the extent such delay or failure was caused by Client's delay or failure to perform its own obligations under this Agreement. Notwithstanding anything herein to the contrary, in the event of delay or failure by Client, Consultant may, by written notice to Client, extend any due dates of Services as Consultant deems reasonably necessary. The foregoing is in addition to, and not in lieu of, all other remedies Consultant may have for any such delay or failure by Client.
3.4 Acceptance of services. In the event Consultant is required by this Agreement to modify Client’s Underlying Software, Client shall test the modifications and either accept or reject them upon delivery. At the expiration of seven (7) days after delivery of modifications, it shall be considered that Client has accepted modifications as they were delivered, unless Client provides written notice otherwise to Consultant prior to the expiration of the aforementioned seven-day period. In the event of a rejection, Consultant shall make best efforts to revise the modification to the Client’s satisfaction.
Section 4. Fees and Payment
4.1 Fees. Client shall pay Consultant the fees ("Fees") as set forth in the Order Form.
4.2 Taxes. All Fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Consultant's income.
4.3 Payment.
a. Hourly package. Client shall pay the hourly package fee asset forth in the Order Form (“Hourly Package Fee”) before Consultant starts providing Services identified in the Order Form. The Hourly Package Fee is not refundable. The Hourly Package Fee expires 12 months after it is paid, provided any delay in rendering Services is not solely due to Consultant’s actions or omissions.
b. Subsequent invoices. After the Hourly Package Fee is exhausted, all Services provided by Consultant shall be billed at the hourly rate set forth in the Order Form. Client’s written request for Consultant to continue providing Services after the Hourly Package Fee is exhausted, or acceptance of such Services without a written objection, shall constitute Client’s agreement to retain Consultant after the Hourly Package Fee is exhausted pursuant to the terms of this Agreement. Consultant shall tender invoices to the Client by e-mail and payment shall be due within fourteen (14) calendar days after the Client’s receipt thereof.
c. Late payment charges. If any invoice is not paid in full by its due date, in addition to the principal amount due pursuant to the invoice, Client shall also pay Consultant a monthly fee of 1.3% on the unpaid principal amount of the invoice for each month the invoice remains outstanding after its due date (“Late Payment Charges”). Late Payment Charges shall be applied in conjunction with all other remedies available to Consultant by the terms of this Agreement and under applicable law.
d. Credit card authorization. In the event any invoice remains outstanding for a period of time exceeding 30 (thirty) calendar days after its due date, Consultant may charge Client’s credit card on file in the amount of the outstanding invoice plus applicable Late Payment Charges. Client shall complete the credit card authorization form contained in the Order Form and shall update it periodically as necessary.
4.4 No deduction or setoff. Client shall pay all amounts due under this Agreement without setoff, deduction, recoupment, or withholding of any kind for amounts owed or payable by Consultant, whether under this Agreement, applicable law, or otherwise.
Section 5. Intellectual property rights. All right, title and interest in and to(a) the Work Product and (b) all works, inventions, and other subject matter incorporating, based on, or derived from any Work Product, including all customizations, enhancements, improvements, and other modifications thereof (collectively, "Derivatives"), and Client Materials, shall belong to Client. Consultant hereby grants and assigns to Client all right, title and interest to all Work Product created hereunder. Nothing in this Agreement or otherwise shall be construed to prevent Consultant from using general know-how, expertise, skill and understanding possessed prior to or gained using the course of performing Services hereunder. Notwithstanding anything in this Agreement to the contrary, after this Agreement expires or is terminated, Consultant may keep a copy of any Deliverable or other materials created while providing Services, including recordings of meetings and notes. Client shall have no right, title or interest in or to any technology, know-how or other intellectual property that belonged to Consultant before the Effective Date.
Section 6. Representations and Warranties
6.1. Representations and warranties of Consultant and Client. Consultant represents and warrants that it has the authority and right to enter into this Agreement and preform the Services hereunder; the Services will be performed in a competent and professional manner; and to its knowledge, none of its Deliverables will infringe on third-party rights. Client represents and warrants that it has the authority and right to enter into this Agreement; and to its knowledge, its use of the Underlying Software will not infringe on third-party rights.
6.2 DISCLAIMER OF WARRANTIES. ALL SERVICES, SOFTWARE AND WORK PRODUCT ARE PROVIDED "AS IS" AND CONSULTANT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE,AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESSFOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIESARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
Section 7. Confidentiality
7.1 Confidential information. In connection with this Agreement, each Party(as the "Disclosing Party") may disclose or make available Confidential Information to the other Party (as the "Receiving Party"). Subject to Section 7.2, "Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, Clients, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as "confidential". Without limiting the foregoing, the financial terms of this Agreement are the Confidential Information of both parties.
7.2 Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
7.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: (a)not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) except as may be permitted by and subject to its compliance with Section 7.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 7.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7.3; (c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care; and (d) ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 7. The Receiving Party shall be responsible for any breach of or non-compliance with this Section 7 by any of its Representatives.
7.4 Compelled disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy, or waive its rights under Section 7.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 7.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party's legal counsel, the Receiving Party is legally required to disclose and, upon the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
Section 8. Term and Termination
8.1 Term. The term of this Agreement shall commence on the Effective Date and shall continue in full force and effect thereafter until all Services have been completed or terminated as provided below ("Term").
8.2 Termination without cause. Either Party may terminate this Agreement for any reason upon seven (7) calendar days’ written notice to the other Party.
8.3 Termination for cause. In the event of any material breach of this Agreement by either Party, the non-breaching Party may terminate this Agreement immediately by providing written notice to the other Party. Failure by Client to pay Consultant’s invoices timely and in fill shall be considered as a material breach.
8.4 Effect of expiration or termination. Upon the expiration or termination of this Agreement: (a) Except as provided otherwise in this Agreement, Consultant shall (i) return to Client all documents and tangible materials containing, reflecting, incorporating, or based on the Client Materials or Client's Confidential Information; and (ii) permanently erase the Client Materials and Client's Confidential Information from its computer systems, except, in each case, to the extent to the extent required or permitted otherwise by this Agreement; (b) Client shall (i) return to Consultant all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on Consultant's Confidential Information; and (ii) permanently erase Consultant's Confidential Information from its computer systems, except to the extent as otherwise required or permitted by this Agreement; (c) If Consultant terminates this Agreement pursuant to Section 8.3, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Client shall pay such Fees, in compliance with its obligations pursuant to Section 4 hereof.
Section 9. Indemnification
9.1 Consultant indemnification. Consultant shall indemnify, defend, and hold harmless Client and Client's officers, directors, employees, agents, successors, and assigns (each, a "Client Indemnitee") from and against any and all Losses incurred by Client Indemnitee resulting from any Action by a third party (other than an Affiliate of a Client Indemnitee) to the extent such action is alleging that Client's use of Consultant’s Deliverables in compliance with this Agreement infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (a) materials not provided or authorized in writing by Consultant; (b) modification of Consultant’s Deliverables other than: (i) by Consultant; or (ii) with Consultant's written approval in accordance with Consultant's written specification; (c) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Client; or (d) act, omission, or other matter described in Section 9.2(a), Section 9.2(b), or Section 9.2(c),whether or not the same results in any Action against or Loss by any Consultant Indemnitee.
9.2 Client indemnification. Client shall indemnify, defend, and hold harmless Consultant and its subcontractors and affiliates, and each of its and the irrespective officers, directors, employees, agents, successors, and assigns (each, a "Consultant Indemnitee") from and against any and all Losses incurred by any Consultant Indemnitee in connection with any Action by a third party (other than an Affiliate of a Consultant Indemnitee) to the extent such Action is arising out of or relating to: (a) Client Materials or Consultant's use thereof in accordance with this Agreement; (b) Consultant's compliance with any specifications or directions provided by or on behalf of Client to the extent prepared without any contribution by Consultant; or (c) any allegation of facts that, if true, would constitute Client's breach of any of its representations, warranties, covenants, or obligations under this Agreement.
9.3 Indemnification procedure. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 9.1 or Section 9.2, as the case may be. The Party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section9.3 will not relieve the Indemnitor of its obligations under this Section 9 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
This Section 9 sets forth Client's sole remedies and Consultant's sole liability and obligation for any actual, threatened, or alleged claims that this Agreement or any subject matter hereof (including the Software) infringes, misappropriates, or otherwise violates any third-party intellectual property right.
Section 10. Limitations of Liability
10.1 Exclusion of damages. In no event shall Consultant or any of its licensors, service providers, or suppliers be liable under or in connection with this Agreement or its subject matter under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any: (a) loss of production, use, business, revenue, or profit, or loss of data or diminution in value, or (b) consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages, regardless of whether such persons were advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable, and notwithstanding the failure of any agreed or other remedy of its essential purpose. Further, in no event shall Consultant or any of its licensors, service providers, or suppliers be liable to Client if Client sustains any damages that were caused in whole or in part by its own acts or omissions, including due to or related to Client’s failure to abide by its obligations under this Agreement.
10.2 Cap on monetary liability. In no event will the collective aggregate liability of Consultant and its licensors, service providers, and suppliers under or in connection with this Agreement or its subject matter, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, exceed the amount paid by Client to Consultant under this Agreement. The foregoing limitation applies notwithstanding the failure of any agreed or other remedy of its essential purpose.
Section 11. Restrictive covenant. During the Term of this Agreement and for one (1) year thereafter, either Party shall not, and shall not assist any other Person to, directly or indirectly, recruit or solicit for employment or engagement as an independent contractor any person then or within the prior one(1) year employed or engaged by the other Party. In the event of a violation of this Section 11,the aggrieved Party shall be entitled to liquidated damages equal to the compensation paid by that Party to the applicable employee or contractor during twelve (12) months prior to the breach of this Section 11.
Section 12. Compliance with data privacy laws. During the Term of this Agreement, Client shall ensure its own compliance with all applicable laws related to the collection, storage and use of personal information, including data privacy laws and HIPAA compliance laws. Client understands that while providing Services, Consultant may have access to certain personal information of Client’s customers, including social security numbers and dates of birth. Client further understands that Consultant does not operate as a HIPAA-compliant service provider.
Section 13. Miscellaneous
13.1 General provisions. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments, and appendices, the terms contained in the main body of this Agreement shall control. Client shall not assign any of its rights, or delegate any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Consultant's prior written consent. No delegation or other transfer will relieve Client of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 13 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever. To be valid, all amendments hereof must be inwriting, signed by both parties. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the party so waiving. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof. If any provision of this Agreement is invalid, illegal, or unenforceable, the fact thereof shall not affect the validity of any other part of the Agreement.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
13.2 Notices. Except as otherwise expressly set forth in this Agreement, all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement have binding legal effect only if in writing and addressed to a Party to the address appearing on page 1 of this Agreement and on the Order Form, or to such other address as designated from time to time.
13.3 Force majeure. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control (a "Force Majeure Event") including acts of God, flood, fire, earthquake, or explosion, war, terrorism, invasion, riot, or other civil unrest, pandemic, epidemic, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages, or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export, or import restriction, quota or other restriction or prohibition, or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation, or failures or outages of third-party service providers or SaaS platforms upon which the Services depend not due to the fault of the Company. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of sixty (60) days or more. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt notice to the other party, stating the period of time the occurrence is expected to continue and use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
13.4 Governing law, submission to jurisdiction. This Agreement, including the Order Form, is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled exclusively by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by a single arbitrator seated in New York, New York, may be entered in any court having jurisdiction thereof. Nothing contained herein shall prevent Consultant from seeking emergency relief from a court of competent jurisdiction. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party hereto against the other Party arising out of or related to this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing Party.
13.5 Survival. The provisions set forth in the following Sections of this Agreement, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Sections3.3, 4, 5, 6, 7, 8.4, 9, 10, 11 and 13.