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1. Scope of Agreement

These general Terms and Conditions along with the terms contained in each Statement of Work (collectively, the “Agreement”) contain the complete and exclusive terms and conditions of the services to be provided ("Services") by Estli Consulting, LLC to the customer ("Customer"). The terms and conditions of each Statement of Work shall, with respect to such Statement of Work, prevail over any conflicting terms and conditions in these general Terms and Conditions.  The Statement of Work and these Terms and Conditions may only be modified by a writing executed by the parties with the intent of superseding the Statement of Work or these Terms and Conditions.  Each Scope of Work shall be incorporated into this Agreement by this reference and be deemed a part of this Agreement.

 

2. Price and Terms of Payment

A.  All prices being charged by Estli Consulting, LLC to Customer pursuant to this Agreement shall be set forth in the applicable Statement of Work. Estli Consulting, LLC shall deliver an invoice (together with any required supporting documentation) to the Customer as set forth in the Statement of Work. 

 

B.    Customer shall pay invoices less any charges being disputed by Customer in good faith upon receipt of the invoice.  Any invoices not being disputed by Customer in good faith which are paid more than thirty (30) days after receipt will be assessed a late payment service charge of 1.5% per month or the maximum allowable by applicable law, whichever is less.  Customer shall notify Estli Consulting, LLC of any disputed charges in writing no later than thirty (30) days after date of the invoice (collectively “Dispute Notice”).  Any such Dispute Notice from Customer to Estli Consulting, LLC pursuant hereto shall set forth in reasonable detail the charges being disputed by Customer and the reason(s) for said dispute.  Estli Consulting, LLC and Customer shall attempt in good faith to resolve any such dispute prior to the payment due date or, if the due date has already passed, within ten (10) days of the date of said Dispute Notice.  If the dispute cannot be resolved prior to the payment due date, Customer shall pay the invoiced amount minus the disputed amount on the due date of original invoice.  If the dispute is subsequently resolved in favor of Estli Consulting, LLC, Customer shall pay all amounts agreed or found to be owing to Estli Consulting, LLC plus any late charge, within thirty (30) days of the date of the reissued invoice.  Any payment by Customer pursuant hereto shall not prejudice Customer’s right to dispute charges, so long as they are disputed in the manner and within the time specified in this section.  If the dispute is subsequently resolved in favor of Customer, any credits resulting to Customer from said dispute shall be reflected by Estli Consulting, LLC in the immediately subsequent billing cycle. 

 

3.         Term and Termination

A.   Unless otherwise stated in the Statement of Work, the Agreement shall be effective as set forth in the Statement of Work or if not otherwise specified upon the full execution of the Statement of Work by the parties thereto.

 

B.   This Agreement shall terminate or may be terminated by the parties as set forth in the Statement of Work.  This Agreement may be extended or renewed by written agreement of the parties through the extension of a Statement of Work or the execution of the new Statement of Work that references this Agreement.

 

C.  Upon any termination of this Agreement, Estli Consulting, LLC shall deliver to Customer any and all work and materials of any kind in Estli Consulting, LLC’s possession that Estli Consulting, LLC created or obtained for Customer pursuant to the Statement of Work.  Upon any termination of this Agreement, Customer shall pay Estli Consulting, LLC for any work completed and expenses incurred to and including the date of termination which is not subject to a good faith dispute between the Parties.  Termination of the Agreement shall automatically terminate all outstanding Statements of Work associated with such Agreements.

 

D.  In the event of a material breach by either party hereto of an obligation under this Agreement not cured within the permitted cure period hereunder, the non-breaching party shall be entitled to collect from the breaching party all costs of enforcement incurred by the non-breaching party to cure said material default, including without limitation, reasonable attorney’s fees incurred by the non-breaching party in enforcing any obligation of the breaching Party under this Agreement or in curing any material default.

 

4.  Independent Contractor Status

Absent an express and written agreement otherwise between Estli Consulting, LLC and Customer, the relationship of Estli Consulting, LLC to the Customer is that of independent contractor solely and Estli Consulting, LLC is directly responsible for the mode, method, and manner of its activities. Under no circumstances, as a result of this Agreement, shall Estli Consulting, LLC or any employee, agent, or representative of Estli Consulting, LLC be considered an employee, agent, or representative of Customer. Nothing contained herein shall create any agency, partnership, association, or joint venture between Estli Consulting, LLC  and Customer. Estli Consulting, LLC shall have no right or authority to create any obligation or responsibility, express or implied, on behalf of or in the name of the Customer, or to bind the Customer contractually in any manner whatsoever, nor shall the Customer have any such right or authority in relation to Estli Consulting, LLC. Estli Consulting, LLC will not make any representation, express or implied, that it is an agent or representative of the Customer. Estli Consulting, LLC shall be responsible for all employment matters relating to Estli Consulting, LLC and Estli Consulting, LLC’s employees, including but not limited to, payment of all federal, state, and local employment taxes, workers’ compensation and disability insurance coverage and other mandated employee benefits, as well as any non-obligatory fringe benefits. Customer shall not be liable for such Estli Consulting, LLC liabilities or for any other debts, obligations, or other liabilities of Estli Consulting, LLC

 

5.  Intellectual Property

Any work developed or undertaken by Estli Consulting, LLC specifically for Customer pursuant to a Statement of Work (the “Work”) shall be deemed to be work made for hire and Customer shall own all right, title, and interest in and to such material and each part and component thereof, whether or not patentable or copyrightable (including, without being limited to, results, inventions, information, materials, products, trade secrets, know-how, technical and non-technical data, discoveries, methods, processes, studies, research, test results, techniques, formulae, compounds, designs, improvements, developments, , and any files, notebooks, drawings, software, computer programs, diagrams, specifications, and other documents containing or recording any of the foregoing), and any copyright therein and patent application or patent thereon. Estli Consulting, LLC hereby transfers and assigns to the Customer all right, title and interest in and to the Work. At the Customer’s request, Estli Consulting, LLC shall promptly give, execute, deliver, file, and record any and all applications, assignments or other instruments, and shall do such other acts and things, as Customer may deem necessary in order effectively to transfer, assign, convey, and vest in and to Customer all right, title, and interest in and to the Work, each part and component thereof, all copyrights therein, and all patent applications and patents thereon; in order to assist Customer in prosecuting or defending any litigation and proceedings relating to the Work, any part or component thereof, any copyright therein, or any patent application or patent thereon; or in order to evidence or preserve the Customer's ownership of the right, title, and interest in and to the Work, each part and component thereof, all copyrights therein, and all patent applications and patents thereon.

 

Notwithstanding the foregoing, Estli Consulting, LLC has created, acquired or otherwise has rights in, various concepts, ideas, methods, methodologies, procedures, processes, techniques, and know-how used by Estli Consulting, LLC in providing the Services related to the Statement of Work (VIT Property).  Estli Consulting, LLC owns all right, title and interest in the VIT Property including without limitation all rights under copyright, patent, and other intellectual property laws.  To the extent that Estli Consulting, LLC utilizes or improves the VIT Property in connection with performance of the Services under the Statement of Work or incorporates VIT Property into the Work such VIT Property shall remain the property of Estli Consulting, LLC

 

This Section 5 shall survive termination of this Agreement.

 

6. Freedom of Access to Equipment

A.    Subject to the confidentiality provisions imposed upon it hereunder, Estli Consulting, LLC shall have reasonable and free access to Customer's equipment as necessary to provide Services thereon, and, when service is rendered on-site, Customer shall provide Estli Consulting, LLC a safe place in which to perform such Services, including working space, heat, light, ventilation, electric current and outlets for the use of Estli Consulting, LLC’s personnel.

 

B.   If Estli Consulting, LLC responds to a service call in a timely fashion and is delayed or prevented from performing the Services contemplated hereunder by Client, all waiting time, and any return service calls so necessitated, shall be billed on a time and materials basis at Estli Consulting, LLC's established service rates then in effect.

 

7.  Excusable Delay

Estli Consulting, LLC shall not be liable for any delay in rendering any service if the delay is due to any act of God or any matter beyond its reasonable control, including but not limited to fire, flood, earthquake, explosion, strikes or labor dispute, war, riot or other civil commotion, transportation delay, or government act.

 

8.  Warranty

ESTLI CONSULTING, LLC WARRANTS THAT THE SERVICES PROVIDED TO CUSTOMER UNDER THIS AGREEMENT WILL BE PERFORMED IN A TIMELY, WORKMANLIKE, AND PROFESSIONAL MANNER.  ESTLI CONSULTING, LLC, SHALL ABIDE BY PROFESSIONAL STANDARDS AND PRACTICES CUSTOMARILY FOLLOWED BY INFORMATION TECHNOLOGY AND TELECOMMUNICATION CONSULTANTS RENDERING SIMILAR TYPE CONSULTING SERVICES AND SHALL USE ONLY QUALIFIED TECHNICIANS AND CONSULTANTS IN CONNECTION THEREWITH.  ESTLI CONSULTING, LLC WARRANTS THAT NO LIENS OR ENCUMBRANCES WILL RESULT FROM THE PERFORMANCE OF THE SERVICES CONTEMPLATED HEREUNDER.  ESTLI CONSULTING, LLC MAKES NO OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES WITH RESPECT TO THIS AGREEMENT OR THE MATERIALS AND SERVICES CONTEMPLATED HEREUNDER INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.

 

9.  Limitation of Liability

IN NO EVENT SHALL EITHER PARTY HERETO BE LIABLE UNDER ANY SECTION OR SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATING TO THE SERVICES OR TERMS, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR REVENUE, LOST DATA, DAMAGE TO BUSINESS OR BUSINESS RELATIONS, LOSS OF USE OF EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTED FACILITIES OR SERVICES, DOWN-TIME COSTS,  OR CLAIMS BY PARTNER OR BUYERS OF PARTNER OR (II) FOR ANY AMOUNTS IN EXCESS OF THE AGGREGATE AMOUNT OF FEES PAID TO PARTNER BY VIT IN THE TWELVE MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE.  CUSTOMER ACKNOWLEDGES THAT THE FEES CHARGED BY ESTLI CONSULTING, LLC REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT ESTLI CONSULTING, LLC WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

 

10.  Indemnification 

Customer shall at all times indemnify and save Estli Consulting, LLC harmless against and from all losses, liability, expenses, and other detriments of every nature and description to which Estli Consulting, LLC may be subjected by reason of any act or omission of Customer its subcontractors, consultants, agents, officers, directors, and employees where such loss, liability, expense or other detriment arises out of or in connection with the performance of the work, including, but not limited to, personal injury (including death) and loss of or damage to property of the Estli Consulting, LLC or others.  This indemnity shall not extend to any claims, damages, losses and expenses which are due to act of gross negligence of Estli Consulting, LLC.

 

11.  Non-Solicitation

During the course of the performance of the Services, one or more of Estli Consulting, LLC’s employees may be present at the Customer’s place of business to provide on-site services and will become familiar with the Customer’s computer systems and personnel.  The Customer acknowledges that Estli Consulting, LLC’s employees are highly trained, constitute a valuable asset to Estli Consulting, LLC, and constitute an important role in Estli Consulting, LLC’s ongoing business.  Therefore, the Customer agrees that, during the term of this Agreement and for a period of one (1) year after the later of (a) the termination of this Agreement or (b) the date when the last one of Estli Consulting, LLC’s employees has stopped performing services for Customer (whether on-site or off-site), Customer shall not, directly or indirectly, for itself or on behalf of any other person or entity, employ, attempt to employ, or solicit the employment of any employee of Estli Consulting, LLC (either as an employee or an independent contractor).  Customer further acknowledges that, in the event of a violation of the foregoing covenant, it will be very difficult or impossible to calculate the damages to Estli Consulting, LLC  Therefore, in the event of a violation of the foregoing covenant by the Customer, the Customer agrees to pay Estli Consulting, LLC in lieu of actual damages and as liquidated damages (and not a penalty), two hundred percent (200%) of the total first year salary that would have been payable to the former Estli Consulting, LLC employee by Estli Consulting, LLC.

 

12.  Confidentiality

Commencing on the Effective Date and continuing until the date which is three (3) years after the termination of this Agreement, each Party shall protect as confidential and shall not disclose to any third party, any confidential or proprietary information (“Confidential Information”) received from the disclosing Party or otherwise discovered or received by the receiving Party during the term of this Agreement.  Confidential Information shall include any documents or material marked “Confidential” or identified as such at the time of disclosure and confirmed in writing (including by electronic communications) as being confidential within fourteen (14) days of disclosure by the disclosing Party to the receiving Party.  Confidential Information shall also include under this Agreement whether in written or electronic format or given orally by either Party any and all:

 

1. trade secrets concerning the business, practices, concepts and affairs of either Party, including without limitation, processes, designs, graphs, current and planned inventory systems and information current and planned agreements with suppliers, current and planned distribution methods and processes, customer lists, current and anticipated customer requirements, including customer service methods and strategies, price lists, market studies, business plans, computer software and database technologies, systems and other information however documented that is a trade secret within the meaning of the laws of the State of Massachusetts; and,

2. information, concerning the business and affairs of either Party (which includes historical financial statements, financial projections and budgets, historical and projected sales, capital spending budgets and plans, cost information, product and price lists, the names and backgrounds of key personnel, personnel training techniques and materials) however documented that may hereafter be provided or shown to the other party or is otherwise obtained from review of documents or property to discussions with representatives of either Party; and shall additionally include but not be limited to the pricing and terms of this Agreement, and any information relating to the disclosing Party’s technology, business affairs, and marketing or sales plans.  The Parties shall use Confidential Information only for the purpose of this Agreement.

 

13.  Arbitration of Disputes

All claims, disputes and other matters ("Disputes") relating to the Services which cannot be resolved within five (5) days of written notice by any party to the other party that a Dispute exists, will be submitted for resolution in accordance with the American Arbitration Association in Springfield, MA.  Upon such Dispute being submitted to the American Arbitration Association for resolution, the arbitrators shall assume exclusive jurisdiction over the Dispute and the decisions of such arbitrators shall be binding upon the parties hereto and shall be entered in any court of competent jurisdiction.

 

14.  Governing Law

The Services and Terms shall be construed and enforced under applicable procedural, statutory and common law of the Commonwealth of Massachusetts.  Customer hereby consents and submits itself to the non-exclusive jurisdiction of the Courts of the Commonwealth of Massachusetts with respect to any controversy arising under or relating to the Services or Terms.  Service of process may be affected on any party hereto which is not a resident of the Commonwealth of Massachusetts by certified or registered United States Mail, postage prepaid, addressed to such party at any address contained in the Invoice, a purchase order or other similar document.

 

15.  Waiver of Breach 

The waiver by party of any specific breach by the other of any provision of the Terms shall not be deemed a waiver of any future breach or noncompliance.

  

16.    No Third-Party Beneficiaries

The parties do not intend that the Terms benefit or create any right or cause of action in any third person.

 

17.   Subcontracting

Estli Consulting, LLC shall not subcontract any Services it is to render to Customer hereunder without the Customer’s prior written approval and consent not to be unreasonably withheld, conditioned or delayed by Customer.

 

18.  Assignment

Customer shall not assign or otherwise transfer its respective rights or obligations under this Agreement without the prior written consent of the other party hereto, any prohibited assignment or delegation by either party hereto shall be void.

 

19.  Compliance with Laws

At all times during the Term, or any extension hereof, the parties hereto shall comply with all applicable federal, state, municipal, and local laws, regulations pertaining or relating to performance and compliance under this Agreement.

 

20.    Notice

Any notice required to be given hereunder shall be sufficient if sent by certified mail and shall be effective as of the date of receipt thereof.

 

21.  Performance of Services

A.  As used herein, the terms "Computer System(s)" or "Network System(s)" shall mean Customer's computer hardware and software that will be subject to or affected by the Services.

 

B. Estli Consulting, LLC shall be relieved of its obligation to perform Services upon the occurrence of any of the following:

 

1. The premises on which the Computer System is to be installed does not meet the specifications as supplied by the original manufacturer of the Computer System;

2. The Computer System, in whole or in part is defective or is not otherwise in good operating condition, as determined by the applicable specifications for such Computer System;   

3. Customer makes alterations or modifications to the Computer System or any portion thereof; or 

4. Customer attaches computer hardware devices to the Computer System or uses computer software that are not supplied by or recommended for use by the manufacturer of the Computer System.

 

22.  Duties of Customer

A. Prior to Estli Consulting, LLC’s commencement of Services hereunder, Customer shall:

 

1. Prepare the premises where the Computer System is to be installed, including providing electrical power, air conditioning, flooring, space, and such other items as may be required to conform to the specifications set forth by the manufacturer of the Computer System;

2. Secure all permits, licenses and other formalities that may be required by applicable laws, statutes, ordinances or regulations; and

3. Ensure that the hardware and software pre-requisites of the Computer System have been satisfied as required by the manufacturer of the Computer System.

 

B.   During the term hereof, Customer shall take such action as may be necessary to permit Estli Consulting, LLC to perform the Services without interference from Customer or third parties.

 

23.  Equipment

Prior to Estli Consulting, LLC commencing the performance of Services under the Agreement, Customer shall purchase all necessary computer hardware and software required in connection with the Services. Estli Consulting, LLC specifically disclaims any and all warranties in connection with such computer hardware and software. To the extent that any defects in such computer hardware or software cause Estli Consulting, LLC to expend additional time or effort, Customer will compensate Estli Consulting, LLC for such time and effort at Estli Consulting, LLC’s quoted time and material rates.  To the extent the Estli Consulting, LLC agrees to purchase software or hardware under the Statement of Work, Estli Consulting, LLC disclaims any warranty relating to such software or hardware and Customer shall rely solely on the warranties, if any, provided by the manufacturer or developer of the software or hardware.

 

24.   Waiver of Jury Trial 

Both Customer and Estli Consulting, LLC expressly waive any right to a trial by jury respecting any action, defense, cross claim, counterclaim and/or any other form of proceeding or other matters arising out of or in connection with the Services or the Terms.  In extension of the foregoing, both Customer and Estli Consulting, LLC specifically consent to a trial before the court respecting any such matter.