Services Terms and Conditions

CONSULTING AGREEMENT

This Professional Services Agreement (this “Agreement”) sets forth the standard terms and conditions under which Jacobson Consulting Applications, Inc., with its principal place of business at 575 Eighth Avenue, Suite 1200, New York, NY 10018 (hereinafter “Consultant”), performs services for clients. By signing a Letter of Agreement (“LOA”) or Work Order (“WO”) that incorporates this Agreement by reference, the client identified in such LOA or WO (hereinafter “Client”) agrees to be bound by the terms and conditions set forth herein, as may be amended from time to time in accordance with its terms.

Article 1 – TERM AND TERMINATION

1.1 Term. This Agreement will become effective on the date first shown above and will continue in effect through the completion of each Work Order (as described in Section 3.1 hereof). The initial Work Order is attached as Supplement 1.

1.2 Termination. Either party may terminate any Work Order or this Agreement on thirty (30) days’ advance written notice if the other party materially breaches this Agreement. Upon receipt of such notice by Consultant, Consultant shall advise the Client of the extent to which performance has been completed through such date, and upon payment of sums due for all work performed through the date of termination, collect and deliver to Client whatever work product then exists. Notwithstanding the foregoing, neither party may cancel this Agreement if the other party has cured such breach within such thirty (30) day period.

1.3 Acceptance. The Work Order, or any part thereof, shall be considered complete in ten (10) business days from delivery of the Deliverables (as defined in Article 3.1 below) in each Work Order from Consultant to Client. Client will have such ten (10) business day period from the date of delivery to review and test the Deliverables. Client shall notify Consultant in writing prior to the expiration of the ten (10) day period if revision to the Deliverables, as specified in the Work Order, is required. Failure of Client to so notify Consultant shall be deemed an acceptance and completion of the Work Order by Client.

1.4 Survival. In the event of any termination of this Agreement, Articles 5, 6, 7, 8, 9 and 10 hereof shall survive and continue in effect.

Article 2 – INDEPENDENT CONTRACTOR STATUS

2.1 Intention of Parties. Consultant shall be an independent contractor and not an employee, agent, joint venturer, or partner of Client. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Client and either Consultant or any employee or agent of Consultant.

2.2 Nonexclusive. Consultant shall retain the right to perform work for others during the terms of this Agreement. Client shall retain the right to cause work of the same or a different kind to be performed by its own personnel or other contractors during the term of this Agreement.

Article 3 – SERVICES TO BE PERFORMED BY CONSULTANT

3.1 Work Orders. All work performed by Consultant shall be documented in a Work Order signed by authorized representatives of both parties. Each Work Order shall set forth, at a minimum, the specific work to be done (the “Deliverables”), the estimated duration of the assignment, payment terms, and the projected fees for the work to be performed. Consultant shall have the right to accept or decline any proposed Work Order.

3.2 Method of Performing Services. Consultant, in conjunction with its personnel, will determine the method, details, and means of performing the work to be carried out for Client. Client shall have no right to, and shall not, control the manner or determine the method of accomplishing such work. Client may, however, require Consultant’s personnel to observe at all times the security and safety policies of Client. Client shall provide Consultant with necessary user accounts, password(s) and means of access to Client’s data, server or systems. Consultant will comply with Client’s stated security information protocols. Any expenses of Consultant in complying or proving compliance with Client’s security and safety polices shall be paid by Client. Consultant shall be obliged to safeguard the password(s) provided to it by Client and Consultant shall be responsible for all negligent use of such password(s). It shall be Client’s obligation to provide its security measures to Consultant and to make its data, system and Server secure and Consultant shall not be responsible for Client’s failure to do so, or from any damage resulting therefrom.

3.3 Scheduling. Should any personnel of Consultant be unable to perform scheduled services because of illness, resignation, or other causes beyond Consultant’s reasonable control, Consultant will attempt to replace such personnel within a reasonable time, but Consultant shall not be liable for failure if it is unable to do so. Consultant’s personnel may perform work for Client at Client’s premises, but may otherwise perform the work off-site. Client agrees to provide working space and facilities, and any other services and materials Consultant or its personnel may reasonably request in order to perform their work on-site or off-site. Upon initiation of each Work Order, Consultant and Client shall mutually agree upon a project schedule (“Project Schedule”) that will detail the roles, responsibilities and deadlines of each party specific to the Work Order. If the Client materially delays, postpones or stops work or is unable or unwilling to engage Consultant according to the terms of the Project Schedule, Consultant may charge Client, as liquidated damages and not a penalty, for the cost of the Consultant’s scheduled resources for a term of up to four weeks after the schedule change, not to exceed 20% of the Work Order amount.

Article 4 – COMPENSATION

4.1 Rates. In consideration for the goods and services provided by Consultant to Client pursuant to this Agreement and the relevant Work Order, Client shall pay the fees set forth in the relevant Work Order. The current schedule of fees for work performed by Consultant shall be set forth as part of each Work Order. Unless otherwise stated, Consultant reserves the right to change such schedule for any Work Order upon at least sixty (60) days’ advance notice or at any time for any new Work Order or modified portion of an existing Work Order. Additional configuration, installation, consulting and training hours of Consultant are available to Client at Consultant’s labor rates current at the time of such request.

4.2 Estimates. In the event the schedule of fees set forth in the Work Order is an estimate and not a fixed price, the Work Order shall state that it is an estimate. Although such estimates are not guaranteed, Consultant shall, however, notify Client as soon as possible if it is aware it will exceed the estimate by more than 10% percent above the full estimated amount. Within ten (10) days of receipt of such notice from Consultant to Client, Client may terminate the Work Order by written notice and only be responsible to pay for services actually rendered until such termination. If Client fails to terminate the Work Order, the revised estimate shall be deemed accepted.

4.3 Invoices. Consultant shall endeavor to submit invoices to Client no less than monthly, except if provided to the contrary in the Work Order. Each invoice will provide a breakdown of charges and expense items. Client shall pay each invoice in full within thirty (30) days after receipt, except if provided to the contrary in the Work Order. Expenses will be billed as set forth in the Work Order.

Article 5 – TREATMENT OF CONSULTANT’S PERSONNEL

5.1 Compensation of Consultant’s Personnel. Consultant shall bear sole responsibility for payment of compensation to its personnel.

Article 6 – INTELLECTUAL PROPERTY RIGHTS

6.1 Confidentiality. Consultant and Client shall maintain in confidence, and shall use and disclose only as authorized by each other, all information of each other’s of a competitively sensitive or proprietary nature that it receives in connection with the work performed under this Agreement. The parties shall require their personnel to agree to do likewise. Client shall take reasonable steps to identify for the benefit of Consultant and its personnel any information of a competitively sensitive or proprietary nature, including by using confidentiality notices in written material where appropriate. These restrictions shall not be construed to apply to (1) information generally available to the public; (2) information released by either party without restriction; (3) information independently developed, known or acquired by Consultant or its personnel without reliance on other protected information of Client; (4) information approved for the use and disclosure of Consultant or its personnel without restriction; (5) information received from third parties; or (6) to the extent required by an order of any court or other governmental authority.

6.2 Residual Rights of Personnel. Notwithstanding anything to the contrary herein, Consultant and its personnel shall be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of this Agreement.

6.3 Pre-Existing Intellectual Property of Consultant. The techniques, protocols, process designs, technical data, statistical programs, formulae and algorithms, segmentation models, conceptual drawings and diagrams, proprietary reports and any other technical or written data furnished by Consultant to Client in connection with services provided by Consultant under this Agreement constitute confidential proprietary information belonging to Consultant which is made available to the Client for its use only under this Agreement. Employees of Client are expressly prohibited from using Consultant’s Pre-Existing Intellectual Property in connection with any work not pertaining directly to, or directly benefiting Client. Client agrees to take reasonable steps necessary to safeguard the confidentiality of Consultant’s Pre-Existing Intellectual Property.

Article 7 – INDEMNIFICATION

•  Indemnification. Each party (the “Indemnifying Party”) agrees to indemnify and hold harmless the other party (the “Indemnified Party”), as well as the Indemnified Party’s officers, directors, employees, agents, successors, and assigns, from and against any and all claims, damages, losses, expenses, liabilities, obligations, actions or causes of action (including reasonable attorney fees) which the Indemnified Party, as well as its officers, directors and employees may or might sustain, pay or suffer, by reason of any act, omission or negligence by the Indemnifying Party in connection with the services provided under this Agreement. In no event shall either party be liable under this section for any indirect, incidental, consequential, special, or punitive damages.

Article 8 – HIRING OF CONSULTANT’S PERSONNEL

8.1 Additional Value from Hiring. Client acknowledges that Consultant provides a valuable service by identifying, training and assigning personnel for Client’s work. Client further acknowledges that Client would receive substantial additional value, and Consultant would be deprived of the benefits of its work force, if Client were to directly hire Consultant’s personnel after they have been introduced to Client by Consultant.

8.2 No Hiring without Prior Consent. Without the prior written consent of Consultant, Client shall not recruit or hire any personnel of Consultant until one (1) year after the completion of the last Work Order in effect between the parties.

8.3 Hiring Fee. In the event that Client hires any personnel of Consultant, Client shall pay Consultant, as liquidated damages within thirty (30) days of the date of such hiring, an amount equal to seventy-five percent (75%) of the total first-year compensation Client pays such personnel as a fee for the additional benefit obtained by Client and the loss to Consultant.

Article 9 – LIMITATIONS

9.1 Disclaimer. CONSULTANT REPRESENTS THAT THE WORK PERFORMED BY IT WILL FUNCTION IN ACCORDANCE WITH THE SPECIFICATIONS SET FORTH IN THE WORK ORDER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, CONSULTANT DOES NOT MAKE ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES RENDERED BY ITSELF OR ITS PERSONNEL OR THE RESULTS OBTAINED FROM ITS WORK, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR INDIRECT DAMAGES, OR FOR ACTS OF NEGLIGENCE THAT ARE NOT INTENTIONAL OR RECKLESS IN NATURE, REGARDLESS OF WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2 Total Liability. Consultant’s liability hereunder for damages, regardless of the form of action shall not exceed the total amount paid for services under the applicable Work Order or in the authorization for the particular service if no Work Order is provided.

9.3 Force Majeure. Neither party shall be liable to the other for any failure or delay caused by events beyond their control, including, without limitation, failure to furnish necessary information, sabotage, war, terrorist activities, failures or delays in transportation or communication, failures or substitutions of equipment, labor disputes, accidents, shortages of labor, fuel, raw materials, or equipment, epidemic, pandemic (including COVID-19), the acts, orders or recommendations by any governmental or public agency or authority, or technical failures.

Article 10 – GENERAL PROVISIONS

10.1 Notices. Any notices to be given hereunder by either party to the other may be effected either by (i) personal delivery in writing (ii) by mail, registered or certified, postage prepaid with return receipt requested, or (iii) by electronic mail (“email”). Mailed notices shall be addressed to the parties at the addresses set forth in the introductory paragraph of this Agreement, but each party may change such address by written notice to the other. Notices delivered personally will be deemed made as of actual receipt. Mailed notices will be deemed communicated as of two days after mailing. Notices communicated by email will be deemed to have been delivered and received upon, provided that no bounce-back or delivery failure notice is received by the sender.

10.2 Entire Agreement of the Parties. This Agreement supersedes all agreements, either oral or written, between the parties hereto with respect to the rendering of services by Consultant to Client and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, that are not embodied herein, and that no other agreement, statement, or promise not contained in this Agreement shall be valid or binding. Any modification of this agreement will be effective only if it is in writing signed by the party to be charged.

10.3 Partial Invalidity. If any provision in this agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall continue in full force without being impaired or invalidated in any way.

10.4 Parties in Interest. This Agreement is enforceable only by Consultant and Client. The terms of this Agreement are not a contract or assurance to any third-party beneficiary under or pursuant to the terms of this Agreement. Provided that Consultant does not disclose any Confidential Information in violation of this Agreement, Consultant shall be permitted to use Client’s name and a project synopsis in Consultant’s marketing materials or efforts.

10.5 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York.

10.6 Dispute Resolution. The parties shall be required to attempt in good faith to resolve any controversy or claim arising out of or relating to this Agreement (including without limitation any controversy or claim concerning the formation of this Agreement) as follows:

1. Before proceeding to Arbitration, as set forth below, the CEOs of Consultant and Client shall be required to have a telephone conference or meeting to resolve the issues in dispute.
2. In the event the meeting set forth in item 1 above does not resolve the dispute, the parties agree that before proceeding to litigation they will first promptly submit the claim or dispute to non-binding mediation, before a single mediator, appointed by the American Arbitration Association, JAMS or other mediation service. The fees of the mediation service and of the mediator by shall be borne one-half by the Consultant and one-half by the Client.
3. In the event mediation as set forth in item 2 above does not resolve the dispute, either party may request binding Arbitration after remittance to the other party of a notice requesting such arbitration. Within ten (10) business days after receipt of notice, the receiving party shall submit to the other a written response. The notice and the response shall include (i) a statement of each party’s position and a summary of arguments supporting that position, and (ii) the name and title of the executive who will represent the party and of any other person who will accompany the executive. Within ten (10) business days after delivery of the receiving party’s response, the executives of both parties shall meet at a mutually acceptable time and place, and thereafter as often as they deem necessary, to attempt to resolve the dispute. If the matter is not resolved in accordance with the foregoing procedure, the parties shall submit the dispute to arbitration, which shall be administered by the American Arbitration Association (“AAA”), and which arbitration shall take place in New York County, New York, unless the parties agree otherwise. The arbitration shall be heard and determined by a single arbitrator who is knowledgeable in the field of technology services. The arbitrator’s decision will be final and binding, and either party may enter it in any court with jurisdiction. Each party will bear its own attorneys’ fees and related costs associated with the arbitration. All other costs and expenses of the mediation or arbitration will be paid by Client. Notwithstanding the foregoing, both parties retain the right to obtain an injunction or other equitable relief in court to prevent the misuse of the other party’s confidential information or its intellectual property.

10.7 Successors and Assignment. This Agreement shall inure to the benefit of, and be binding upon, Consultant and Client, their successors and assigns. This Agreement may not be assigned without the prior written consent of all parties.

10.8. Amendments. Consultant may amend the terms of this Agreement from time to time. Any such amendments will be effective immediately upon notice, which may be provided by posting the updated Agreement on Consultant’s website, through Consultant’s newsletter, or via email. Client’s continued engagement of Consultant following such notice shall constitute acceptance of the amended terms.