The purchaser of these services (“Client”) from Process-Smart (“Vendor”) accepts the following terms and conditions with respect to the Services (the “Agreement”):
Scope and Price:
Vendor will perform the selected Services for Client as set forth in the attached Proposal (collectively with the terms and conditions herein, the “Services”) at the price(s) set forth in the Proposal. Additional Services must be requested via a separate agreed upon proposal. Services are subject to all applicable taxes.
Payment Terms:
Payment is due within fourteen (14) days of the invoice date. Client shall not be entitled to reduce or offset any payments owed to Vendor hereunder for any reason. A processing fee of 2.75% will be added to all credit transactions. Any late or unpaid balance will bear interest at a rate of 1.5% per month (18% per year). The unpaid balance shall be determined by taking the beginning balance of the account for each month, adding any new charges and subtracting any payments made to the account. In the event a payment remains past due, Vendor’s obligations under this Agreement will be suspended until payment is made in full. Client shall reimburse Vendor for all costs and expenses reasonably incurred by Vendor in collecting past due amounts, including attorneys’ fees and court costs.
Term and Cancellation of Services:
Vendor shall provide the Services under this Agreement until Client provides fifteen (15) days’ written notice of its desire to cancel Services. Client remains liable for payment of all Services completed through the cancellation date.
Representations and Warranties:
Each party represents and warrants: (a) its entering into this Agreement has been authorized by all necessary corporate action; does not violate the terms of any law, regulation, or court order to which such party is subject, or the terms of any material agreement to which the party or any of its assets may be subject; and is not subject to the consent or approval of any third party; (b) Services are a valid and binding obligation of the representing party, enforceable against such party in accordance with its terms; and (c) it is duly organized and a validly existing entity in good standing under the laws of its state of formation and has the requisite power and authority to request and perform the Services.
Confidential and Proprietary Information:
“Confidential Information” means all Proprietary Information (as defined below), all “non-public personal information” provided in connection with the Services, as such term is defined under Title V of the Gramm-Leach-Bliley Act of 1999 (Public Law 106-102, 113 Stat. 1138), as it may be amended from time to time, the regulations promulgated thereunder or other applicable law, collectively “Privacy Laws,” and all data, trade secrets, business information and other information which has been disclosed to either party, or to which either party has access, in connection with the Services. “Proprietary Information” means all information related to the Services and all resulting work product including, without limitation, all data, designs, software, programs, card decks, tapes, ideas, concepts, techniques, inventions, property or contractual rights, proprietary rights, modifications and enhancements, together with all applicable rights to patents, copyrights, trademarks and trade secrets.
Each of the parties on behalf of itself and its employees, officers, directors, affiliates and agents, agrees that all Confidential Information shall be held in confidence. Each party is not to disclose, publish, release, transfer, or otherwise make available Confidential Information in any form to, or for the use or benefit of, any other person or entity. Each party, however, will be permitted to disclose relevant aspects of the Confidential Information: (a) to its officers, directors, agents, subcontractors, and employees, and to third parties to the extent necessary to perform the Services; and (b) as required by law provided that, prior to any disclosure, the party subject to the requirement shall (i) notify the other party of any legal compulsion or obligation of disclosure immediately, and (ii) cooperate with the other party’s lawful efforts to resist, limit or delay disclosure.
Nothing in this Section shall prohibit or limit either party’s use of Confidential Information (a) previously known to it without restriction on the use of such information; (b) independently developed by it; (c) rightfully acquired by it from a third party with full legal right to disclose such information; or (d) which becomes part of the public domain through no breach of the terms herein. In the event of any breach of the obligations under this Section, each party acknowledges that the other party would have no adequate remedy at law and that in addition to such other remedies as may be available to the other party, the other party may obtain injunctive relief. The provisions of this Section shall survive indefinitely.
Indemnification:
Client shall indemnify, defend and hold harmless Vendor and its respective officers, directors, employees, agents, successors and assigns from all claims, lawsuits, fines, penalties, or liabilities by a third party for damages, injuries, losses, expenses, including reasonable attorney’s fees and costs of any kind whatsoever (“Losses”) incurred in the defense, arising out of or related to (a) non-compliance with the material terms of this Agreement or the breach of any warranty or representation set forth herein; (b) the negligent, reckless, willful or fraudulent acts or omissions by Client or its employees, officers, directors, agents, contractors or representatives; (c) an infringement of the proprietary rights of any third party by Client or its employees, officers, directors, agents, contractors or representatives; or (d) the reliance by Vendor upon false, inaccurate or incorrect information furnished by Client or reliance by Vendor upon the legal right of Client to request the Services.
Vendor shall indemnify and hold harmless Client and its respective employees, officers, directors, and agent, successors and permitted assigns from all Losses incurred in the defense, arising out of or related to (a) non-compliance with the material terms of this Agreement or the breach of any warranty or representation set forth herein; or (b) grossly negligent acts or omissions by Vendor or its employees, officers, directors, agents, or contractors, as determined by a court of law with jurisdiction. Nothing herein shall obligate Vendor to indemnify and hold harmless from and against any Losses to the extent and degree caused by an intentional, negligent or reckless act or omission of Client. The indemnity obligations of Vendor shall not extend to the incidental, indirect, special or consequential damages of Client.
The indemnity provided herein shall survive for the longer of the applicable statute of limitations for such claim or indefinitely to the extent liability associated with such claim may be subject to indemnification and/or defense pursuant to an insurance policy. In the event any disputes arise relating to the indemnification terms herein, the parties agree to submit the dispute to arbitration, in accordance with the laws of Ohio. Such dispute will be brought in the jurisdiction of Cuyahoga County, Ohio. If either party commences arbitral proceedings to enforce the provisions herein, the prevailing party shall be entitled to recover from the other reasonable costs actually incurred in connection with such enforcement, including, but not limited to, attorney’s fees and costs of investigation and arbitration.
General:
Client may not assign any of the rights or obligations under this Services without the prior written consent of Vendor. The Services shall be binding upon, and inure to the benefit of, the parties and their respective successors and permitted assigns.
Client expressly acknowledges and agrees that there may be circumstances that prevent or hinder the performance of Services. Vendor shall not be liable for damages for delay of is obligations herein arising out of causes beyond its reasonable control including, but not limited to, acts of God or public enemy, acts of Government, fires, floods, epidemics or pandemics, strikes, labor disturbances or freight embargoes. Vendor will provide notice to Client of any such delay.
The parties agree that any dispute between the parties hereto shall be resolved by binding arbitration in accordance with the Federal Arbitration Act (or if not applicable, the applicable state law), and the Rules of Practice and Procedure for the Arbitration of Commercial Disputes of the American Arbitration Association (“AAA”). Such dispute will be brought in the jurisdiction of Cuyahoga County, Ohio, with Ohio law governing. Any demand for arbitration shall include detail sufficient to establish the nature of the dispute and shall be delivered to the other party concurrent with delivery to AAA. Nothing in this Section shall limit the right of either party to obtain from a court provisional or ancillary remedies before, during or after the pendency of any such arbitration proceeding.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio. Each party hereby submits to the jurisdiction of such courts and waives any objection to venue with respect to actions brought in such courts.
This Agreement shall not be construed as creating an employee/employer, agency, partnership, or joint venture relationship between Vendor (or any of its agents or employees) and Client. Each party shall have the obligation to supervise, manage, contract, direct, procure, perform or cause to be performed, all work to be performed under this Agreement and shall be responsible for the acts or omissions of their employees and agents in performing their respective obligations hereunder.
All notices required under this Agreement shall be given to the parties in writing to the respective party’s registered agent for service of process.
This Agreement constitutes the entire agreement between Client and Vendor with respect to the subject matter herein, and any prior agreement(s) between Client and Vendor regarding such subject matter is superseded and shall hereafter have no force or effect. Other than those remedies specifically disclaimed herein, all remedies set forth herein shall be in addition to all other remedies available at law or in equity.
If any provision of this Agreement shall be held invalid for any reason, then such provision shall be severed from the remaining provisions of this Agreement and shall not affect the validity or enforceability of the other provisions.
CLIENT EXPRESSLY ACKNOWLEDGES THAT IT HAS READ THE TERMS AND CONDITIONS SET FORTH HEREIN FOR SERVICES AND UNDERSTANDS THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. CLIENT EXPRESSLY CONSENTS TO BE BOUND BY THE FINANCIAL OBLIGATIONS AND TERMS AND CONDITIONS SET FORTH HEREIN AND GRANTS TO VENDOR THE RIGHTS SET FORTH HEREIN.