TERMS AND CONDITIONS
Consulting & Advisory
1. Services.
a) FV will provide the Services as detailed in a Proposal, SOW and/or an SOW Change Order.
b) FV will not commence work under any Proposal or SOW (each referred to herein as an “SOW”) or SOW Change Order prior to Client’s execution of the same.
2. Term of Agreement and Termination.
a) This Agreement shall be effective for the duration of the Term outlined in the SOW. Each Party’s obligations under this Agreement, including Client’s obligation to pay the fees and expenses, will survive termination of this Agreement.
b) Either Party can terminate this Agreement immediately in the event the other Party materially breaches a material provision of this Agreement and the breaching Party fails to cure such breach within thirty (30) days of the receipt of written notice regarding the same, except that Client shall be entitled to a ten (10) day cure period for its breach of the payment terms.
3. Fees and Expenses.
a) The fee for each SOW and SOW Change Order shall be as set forth therein (“Fees”).
b) . The stated Fees do not include applicable Taxes. Client shall be responsible for and reimburse and hold Provide harmless from and against the payment of any Taxes arising out of the provision of Services under this Agreement, such as value-added tax, sales and use tax, or other consumption taxes, but excluding any taxes based on Provider’s gross receipts, net income, or payroll. As used herein, “Taxes” means taxes, levies, duties, or similar governmental assessments of any nature (including value-added and sales and use taxes, but excluding withholding taxes and taxes based on Provider’s income, property, or employees).
c) In the event the Client is required by law to deduct or withhold tax or other charges, the Client will pay such additional amount as required to ensure that the net amount received by FV equals the full amount of the Total Fee and Expenses.
d) With respect to any undisputed amount due on any invoice that is not paid in full within the terms of the Statement of Work, FV has the right to assess a finance charge in the amount of 1.5% per month on the unpaid amount until such time as such invoice is paid.
4. Travel and Other Expenses. Client will reimburse FV for all expenses preapproved by Client in writing that are incurred in connection with the Services (“Expenses”), without limitation, as follows:
a) Airline Travel. For all flights of six (6) hours or less, whenever possible, FV will book economy class airfare. Business class airfare is authorized only for flights of over six (6) hours.
b) Hotels. The cost of business lodging within reasonable proximity to the designated location.
c) Taxicabs and Other Ground Transportation. For reasonable expenses for taxicabs, trains, buses, rental cars, parking and tolls.
d) Meals. For reasonable expenses for meals outside of FV’s home city, including tax and standard service tip.
e) Administrative Costs. For data access, other subscriptions, usage fees, reports, honorariums, respondent fees, and the like.
f) Security. For the cost of any security detail, security services, or safety support that FV deems necessary to ensure the safety and security of its personnel.
FV will invoice for all Expenses based on the actual costs incurred by FV, with no markup and shall provide receipt or other Expense substantiation at Client’s request.
5. Confidentiality.
a) Each Party acknowledges and accepts that it may have access to certain non-public confidential and proprietary information of the other Party including, without limitation, analytical tools, business plans, customer lists, data forecasting, financial data, frameworks, methodologies, processes, product plans, research, sales and marketing information, object and source code, software, and technical data, and in the case of FV, its data and any Deliverables (collectively, “Confidential Information”).
b) Confidential Information includes any information that is expressly marked as confidential or which can be presumed to be confidential based on its inherent nature.
c) Each Party agrees (1) to hold the other Party’s Confidential information in trust using the same degree of care that it uses to protect the confidentiality of its own confidential information (but with no less than reasonable care), (2) to only use the other Party’s Confidential Information it in connection with the Services and this Agreement, and (3) not to disclose the other Party’s Confidential Information except as necessary to perform under this Agreement and only in cases where the recipient has agreed in writing to maintain the confidentiality of any Confidential Information.
d) Confidential Information does not include any information that (1) is generally available to or becomes known to the public through no act of the party in receipt of the Confidential Information (the “Receiving Party”) in breach of this Agreement; (2) was previously known by the Receiving Party as evidenced by written records through no act in breach of any confidentiality agreement; (3) was independently developed by the Receiving Party without the use of any Confidential Information of the other Party as evidenced by written records; or (4) was disclosed to the Receiving Party by a third-party under no obligation of confidentiality to the disclosing Party.
e) The Receiving Party does not secure any ownership right, title, or interest thereto in the other Party’s Confidential Information.
6. Intellectual Property.
a) FV acknowledges and agrees that Client is, to the extent it already possesses such right, the sole owner of all right, title, and interest, including all trade secrets, copyrights, trademark, patent and other intellectual and proprietary rights therein (collectively, the “Intellectual Property Rights”) to any data and all other information, materials, or property prepared, developed, used, or provided by Client to FV under this Agreement, including, but not limited to Client’s logo, trademarks, trade names and copyrighted information. Upon full payment by the Client of all outstanding amounts related to any specific Deliverable that FV creates specifically for and supplies to Client as part of the Services, (1) such Deliverable shall be deemed “work for hire”, (2) for any Deliverable that is not “work for hire,” FV automatically assigns to Client any right, title or interest it may have in the Deliverable; and (3) FV shall take all action reasonably necessary to effectuate Client’s ownership of the Deliverables.
b) FV hereby reserves and retains ownership of all Intellectual Property Rights in and to all information, materials, or property that (i) FV had created or acquired before entering into this Agreement, (ii) FV uses in performing its obligations under this Agreement, including creating any Deliverables, including any models, know-how, software, methodologies, technologies or techniques, (iii) FV develops subsequent to the date of this Agreement independent of Client’s contributions or not paid for by Client, or that (iv) are not derivatives of or modifications of anything provided to FV by Client.
c) Nothing herein shall be construed to restrict, impair or deprive FV of any of its rights or proprietary interest in anything that existed prior to and independent of the performance of Services.
7. License.
a) FV grants to Client a world-wide, royalty-free, non-exclusive license to use, copy, modify, and internally distribute the Deliverables (as defined in the applicable SOW or SOW Change Order) solely for the Client’s own internal business purposes.
(1) Should the Client request that FV incorporate the Client’s information into the Deliverables, the Client warrants that it is the owner of such information, has the right to provide the information to FV, and hereby grants FV a non-exclusive license to incorporate the information into the Deliverables as requested by Client.
(2) The Client is not permitted to share or distribute FV’s Confidential Information or any Deliverables with any third-party, including its consultants or advisors, or publish the same externally without FV’s prior written permission.
b) Client grants FV a world-wide, royalty-free, non-exclusive right to:
(1) Publish the Client’s name and logo on FV’s websites and other marketing materials for the limited purpose of identifying the Client as a FV client.
(2) Publish case studies regarding the work done for Client; provided that FV will ensure that such case studies do not reference the Client by name or contain any information that would identify the specific client without Client’s prior written permission.
8. Indemnification.
a) Client will indemnify and hold FV, its parents, subsidiaries, affiliates, officers, and employees harmless from any claim or demand, including reasonable attorneys’ fees and costs, made by any third-party due to or arising out of Client’s use of the Deliverables or violation of this Agreement.
b) FV will indemnify and hold Client, its parents, subsidiaries, affiliates, officers, and employees harmless from any third-party claim or demand, including reasonable attorneys’ fees and costs, made by any third-party claiming that any Services or Deliverables breach its contractual or Intellectual Property Rights, provided that the breach did not arise from (1) the Client’s use of the Services or Deliverables in violation of this Agreement or (2) modifications to any Services or Deliverables.
9. Limitation of Liability. Except for the gross negligence or willful misconduct of a Party hereto, a Claim involving a Party’s indemnification obligations or a breach of a Party’s obligations of confidentiality, and to the extent permitted by law and notwithstanding anything else contained herein, in no event will the Client or FV be liable to each other or to any third-party for any incidental, consequential, special, punitive, indirect damages or losses including, but not limited to, lost profits, loss of revenue, loss of use, or loss of goodwill arising out of or related to this Agreement or the Deliverables whether such damages arise in contract, negligence, tort, under statute, in equity, at law, or otherwise, even if a Party has been advised of the possibility of such damages. Except for gross negligence or willful misconduct, the total maximum liability of the Client or FV will be limited to the Fees, if any, paid under this Agreement for any and all claims arising therefrom and irrespective of the nature of the claim. Neither Party will have liability to any third-party.
10. Compliance with Laws. Each Party is responsible for compliance with all applicable laws of any jurisdiction or country to which it is subject. Neither Party will transmit or use the Deliverables or any other information that is inconsistent with this Agreement, encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, federal, international laws, regulations or other government requirements.
11. Data Privacy.
a)Data Protection & Security. The following DPA will apply where FV is processing Personal Data for, or on behalf of, Client or its end users:
i) For U.S. Residents. When FV is providing Services which involve the processing of U.S. residents’ Personal Data, the Data Protection Agreement U.S. shall apply to and form part of this Agreement.
ii) When FV is providing Services which involve the processing of European Union (“EU“) and/or United Kingdom (“UK“) residents’ Personal Data, the Data Protection Agreement EU & UK shall apply to and form part of this Agreement.
b) DPAs Incorporated into Agreement. The DPAs hyperlinked in these Terms and Conditions are incorporated by reference and form part of this Agreement. In the event of a conflict between the terms of the applicable DPA(s) and the other terms of this Agreement, the terms of the applicable DPA(s) shall control.
12. Miscellaneous. Neither Party may assign this Agreement to a third-party without the prior written consent of the other Party. A change of control of either Party resulting from a sale of all or substantially all of that Party’s assets will not be deemed an assignment under this clause. If any provision of this Agreement will be invalid, illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired thereby. FV will perform all services under this Agreement as an “independent contractor” and not as an employee or agent of Client. The failure of either Party to enforce any provision hereof will not be a waiver of a Party’s right to enforce any such provision. This Agreement supersedes all previous oral and written agreements between the Parties and constitutes the entire agreement with respect to its subject matter. This Agreement may not be amended or modified except by a writing signed by both Parties. This Agreement may be executed in counterparts, or facsimile versions, each of which will be deemed to be an original, and both of which together will be deemed to be one and the same agreement.
13.Governing Law. This Agreement is acknowledged to have been made and will be governed by and construed in accordance with the laws of the State of New York, United States of America, without giving effect to its conflict of laws principles, and the courts of New York will have exclusive jurisdiction over all legal matters and proceedings hereunder and this original English language version of this Agreement will be controlling in all respects. The Parties each waive any objection based on forum non conveniens or any objection to venue of any such action. In addition, the Parties each will accept service of process by any commercial courier, postal mail service and/or direct hand delivery by a Party to the other Party at such Party’s most recent address.
14. Independent Contractor. The Client and FV agree that FV is an independent contractor and that this Agreement is not intended to create an agency, employer, partner or joint venture relationship of any kind. Likewise, as an independent contractor, FV shall be solely responsible for all taxes, insurance, and benefits which are its obligation or to which it is entitled (except as otherwise agreed in writing by Client). Moreover, FV will be solely responsible for all compensation to its employees and contractors and compliance with all applicable employment laws and regulations, including laws pertaining to tax withholdings.
15. Personnel. Each Party agrees not to hire or solicit any of the other Party’s professional employees engaged in the work contemplated by this Agreement during the Term or within twelve (12) months after the expiration or earlier termination of this Agreement, provided that a general solicitation by one Party not directed specifically at the employees of the other Party shall not violate this Section. Additionally, this shall not be construed to restrict, limit, or encumber an employee’s rights granted by law.
16. Entire Agreement & Amendments.
a) This Agreement (including the SOW(s) in which these Terms and Conditions are referenced) constitutes the entire agreement between FV and Client with respect to the subject matter hereof. This Agreement supersedes all prior negotiations, agreements, and undertakings between the parties with respect to such matter.
b) An SOW Change Order, as mutually agreed to and signed by both Parties, is required to address any delays, changes, modifications, alterations and/or expansion of any SOW. FV may unilaterally require an SOW Change Order due to a delay or work scope change caused by the Client. A SOW Change Order may result in an additional fee and/or supplemental Expenses.