Synogen Solutions Managed Services Legal Binder
- Agreement: The signed agreement (the “Agreement”) is entered between “Consultant” and the “Customer” in connection with the Consultant’s provision of IT Support services.
- Services: It is agreed that the Consultant will provide to the Customer:
- the general services that have been outlined in the proposal document under section Services Overview (“Service Schedule”); and
- additional services (if any) that the Customer has requested be provided as set out in any statement(s) of work agreed and signed by the Consultant and the Customer which shall be in a form equivalent to the example statement of work attached to the Agreement (each such statement of work being a “SOW”),
- Duties, Term and Compensation: The Consultant’s duties, term of engagement, charges and provision for payment thereof are set out in the Agreement, the Service Schedule and/or any SOW. Such duties, term of engagement and payment terms may be amended in writing from time to time or supplemented with additional services that are agreed to in writing by the Customer and the Consultant. No Service shall be rendered by the Consultant without the written agreement of both parties in the form of an amended Service Schedule or SOW. Notwithstanding any other term of the Agreement, the Consultant reserves the right, upon notice to the Customer, to amend the terms of any Service Schedule and/or SOW to the extent necessary to allow the Consultant to comply with or best utilize any alterations or improvements made to the technology and/or software used by the Consultant. In enforcing this right, the Consultant shall act reasonably and in good faith. Any such amendment shall take effect 10 days following delivery of notice of such an amendment. When the term of the contracted Agreement expires, the Customer will automatically enroll for 1 year (12 months) and agree to all previous financial obligation at a 12-month rate. Automatic renewal will occur at end of an automatically renewed Agreement. Automatic renewal can be cancelled with written notice 30 days prior to automatic renewal. If Customer terminates the Automatically renewed Agreement after it has begun, then the full amount 100% of the 12-month amount is due prior to termination of the Agreement.
- Confidentiality: The Consultant acknowledges that during the engagement the Consultant will have access to and become acquainted with various processes, information, customer lists, procedures, records, specifications, etc. belonging to the Customer and/or used by the Customer in connection with the operation of its business (“Customer Information”).
- Insurance: The Consultant will carry liability insurance relative to any service the Consultant performs for the Customer.
- Warranties and Liability: The Consultant warrants to the Customer that the Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Service Schedule and/or any SOW.
- The Consultant shall not be liable to the Customer or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of the Consultant’s obligations in relation to the Services, if the delay or failure was due to any cause beyond the Consultant’s reasonable control.
- Successors and Assigns: All the provisions of the Agreement shall be binding upon and endure to the benefit of the parties hereto and their respective heirs, if any, successors, and assigns.
- Independent Consultant: The Agreement shall not render the Consultant an employee, partner, agent of, or in joint venture with the Customer for any purpose. The Consultant is and will remain an independent consultant in its/his/her relationship to the Customer.
- Choice of Law: The laws of the State of New Jersey shall govern the validity of the Agreement, the construction of its terms, and the interpretation of the rights and duties of the parties hereto.
- Submission to Jurisdiction: To the fullest extent permitted by law, each party hereby irrevocably consents and agrees, that any legal action, suit or proceeding against it with respect to its obligations, liabilities or any other matter under or arising out of or in connection with the Agreement, shall be brought in any city, state or federal court located in the State of New Jersey (the “Designated Courts”), and hereby irrevocably accepts and submits to the jurisdiction of the Designated Courts. Each party irrevocably accepts and submits to the exclusive jurisdiction of each such Designated Court with respect to any such action, suit or proceeding. Each party hereto waives any objection which it may now or hereafter have to the laying of venue of any actions, suits or proceedings brought in any such Designated Court and waives and agrees not to plead or claim in any such Designated Court that any such action, suit or proceeding brought therein has been brought in an inconvenient forum.
- EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR FUTURE MODIFICATION HEREOF OR (B) IN ANY WAY CONNECTED OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THE AGREEMENT (AS NOW OR HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION IS NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND THE PARTIES HEREBY AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THE AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF ANY RIGHT THEY MIGHT OTHERWISE HAVE TO TRIAL BY JURY.
- Headings: Section headings are not to be considered a part of the Agreement and are not intended to be a full and accurate description of the contents hereof.
- Waiver: Waiver by one party hereto of breach of any provision of the Agreement by the other shall not operate or be construed as a continuing waiver.
- Assignment: Neither party shall assign any of its rights or duties under the Agreement without the prior written consent of the other.
- Notices: Any and all notices, demands, or other communications required or desired to be given by any party shall be in writing and shall be validly given or made to another party if personally served or sent by first class recorded delivery mail. If such notice or demand is served personally, notice shall be deemed constructively made at the time of such personal service. If such notice, demand, or other communication is given by first class recorded delivery mail, such notice shall be conclusively deemed given two business days after the date of posting to the address in the Agreement.
- Modification or Amendment: No amendment, change, or modification of the Agreement shall be valid unless in writing and signed by the parties hereto.
- Entire Understanding: The signed document and any Service Schedule and/or any SOW attached to the initial Agreement constitute the entire understanding and agreement of the parties, and any and all prior agreements, understandings, and representations are hereby terminated and cancelled in their entirety and are of no further force and effect.
- Unenforceability of Provisions: If any provision of the Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of the Agreement shall nevertheless remain in full force and effect.
Each service selected from the Service Schedule or as set out in any SOW being a “Service” and, together, the “Services”.
The extent of the Services provided, and the cost of such Services shall be set out in the Service Schedule and/or any SOW, which are deemed to form part of and be subject to the Agreement. For the avoidance of doubt, the Consultant shall not be required to provide any Service to the Customer: (a) where the Customer has not marked the relevant box on the Service Schedule or (b) to the extent that such Service has been excluded, qualified or restricted in accordance with the description provided in the Service Schedule and/or any SOW.
The Consultant shall have the option (but not an obligation) to provide the Customer with an additional service level agreement (“SLA”). Any such SLA shall be deemed to form part of and be subject to the Agreement and may (or may not) be incorporated within a Service Schedule or SOW.
The Consultant agrees not to disclose Customer Information, directly or indirectly, or use Customer Information in any manner, either during the term of the Agreement or at any time thereafter, except as required in the course of the engagement with the Customer or required by law, any court of competent jurisdiction or any regulatory authority. This duty shall not apply to any Customer Information which is in the public domain.
The Consultant shall not acquire any rights in files, records, documents, blueprints, specifications, information, letters, notes, media lists, original artwork/creative content, notebooks, and similar items relating to the business of the Customer (“Customer Records”), whether prepared by the Consultant or otherwise coming into its/his/her possession. The Customer grants the Consultant a non-exclusive, royalty-free license to use and make copies of the Customer Records to the extent necessary for the Consultant to perform the engagement with the Customer and the Customer warrants to the Consultant that it/he/she has the unfettered right to grant such license.
The Consultant shall not retain any copies of Customer Records without the Customer’s prior written permission, unless required by law or regulation or to the extent necessary for compliance purposes. Upon the expiration or earlier termination of the Agreement, or whenever requested by the Customer, the Consultant shall as soon as reasonably practicable deliver to the Customer all Customer Records in or under the Consultant’s control, with the exception of a single copy of any Customer Record which the Consultant is required to keep by law or for compliance purposes.
The Consultant further agrees not to disclose the Consultant’s retention as an independent consultant or the terms of the Agreement to any person without the prior written consent of the Customer and shall at all times preserve the confidential nature of the relationship to the Customer and of the services here under, unless required by law, any court of competent jurisdiction or any regulatory authority.
CONSULTANT MAKES NO OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS OR ANY SERVICES AND DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.THE WARRANTIES IN THE AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES.
The Consultant shall have no liability to the Customer for any loss, damage, costs, expenses or other claims for compensation arising from any Customer Records or instructions supplied by the Customer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Customer.
Except for breach of the express terms of the Agreement or the Consultant’s negligence, the Consultant shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, or condition or other term, or for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims which arise out of or in connection with the provision of the Services or their use by the Customer, and the entire liability of the Consultant under or in connection with the Agreement shall not exceed the amount of the Consultant’s charges for the provision of the Services, and the costs to correct, replace, recover, or repair the damages by the breach, fraud, or negligence of the consultant.
Termination and Payment of Consultant’s Fees: Either party may terminate the Agreement at any time by 60 days’ advance written notice to the other party. If Customer is terminating without cause, 50% (half) of the remaining balance on the contact must be paid in full upon cancellation unless otherwise stated by the Consultant. If termination of contract is with cause based upon a stated remediable breach of contract, not remedied as stipulated, such termination will not be subject to the balance of contact penalty payment.
In addition, if either party materially breaches any provision of the Agreement (and, if such breach is remediable, fails to remedy such breach within 30 days of receiving notice from the other party requiring that such breach be remedied), the party not in breach may at any time terminate the Agreement immediately on giving written notice to the party in breach. Customer may define what constitutes as a material breach on Consultant’s part and Consultant may define what constitutes as a material breach on Customer’s part.
Payment of the Consultant’s fees as specified on the Service Schedule and/or any SOW in respect of Services provided shall be made by the Customer within 15 days of the end of the month in which the Services are provided; if payment is not received by the due date for payment, the Consultant may terminate the engagement immediately, without prior written notice to the Customer and without prejudice to any other remedy available to the Consultant
The various rights and remedies of the parties under the Agreement or otherwise shall be construed to be cumulative, and no one of them shall be exclusive of any other or of any right or remedy allowed by law.