Your agreement with Flexum, Inc. (“Agency”) for the services that you (“Customer”) have ordered is subject to the following terms and conditions.
The Term shall be for the Initial Term specified in the applicable Order Form, reflecting the agreed duration and scope of services. Notwithstanding the foregoing, Customer shall have the right within the first thirty (30) days of the commencement of the Initial Term to terminate this Agreement and only pay the first month’s fees. Upon the expiration of the Initial Term, this Agreement shall automatically renew on a monthly basis unless either party provides written notice of termination at least thirty (30) days prior to the end of the then-current term. Termination during any renewal term shall not affect the parties’ obligations related to services rendered or fees incurred prior to the effective date of termination.
(i) General
In consideration of the fees, Agency will provide the Customer ongoing software development and consulting/design services in one or more of the following areas (collectively, the “Services”): Agency will develop, maintain, customize, distribute and manage front end and back end software for Customer’s applications; test; and provide user and technical documentation for the Services provided, as well as offering design and marketing services. In order to perform the Services, the Customer authorizes Agency to build a team of personnel (personnel can be changed based on mutual agreement; email is sufficient) approximating the labor required for the agreed scope of work, as specified in the applicable Order Form.
(ii) Tracking
Agency shall provide access to Customer to its Task Tracking system which shall contain a description of the current status of the Services, the progress towards assigned Customer objectives and the estimated progress to be made in the next week. Agency shall meet with the Customer as mutually agreed on the progress on the Services.
(i) General
Unless otherwise agreed, Customer shall develop the business designs/model for the core product and for customization; manage relations with Customer’s customers and any customer support. In addition, Customer will provide access to its network, will cover any related server/hosting fees for the software delivered, and if any special licenses, etc. are required, then Customer will be responsible for paying and securing such licenses as well. Customer shall be obliged to participate in pre-planned meetings with Agency as needed and to provide such assistance, cooperation, resources, and a suitable work environment as may be reasonably necessary to provide the Services.
Agency reserves the right, at any time, to modify the Site Content or to modify, suspend, or discontinue the Site or any part thereof with or without notice. You agree that Agency will not be liable to you or to any third party for any modification of the Site Content or modification, suspension, or discontinuance of the Site.
Customer agrees that, for the term of this Agreement, it shall pay for the staffing levels, skill mix, and labor as specified in the applicable Order Form, and as otherwise agreed by the parties. All bank charges associated with transfer funds are charged to the Customer.
For services provided under a monthly payment model, Agency shall provide the Customer with an invoice at the start of each month for the services to be delivered during that month, unless a different invoicing schedule is specified in the applicable Order Form. If services are provided for only part of a month, Agency shall issue a pro-rated invoice reflecting the actual services delivered during the month. The payment amount shall be as agreed and specified in the applicable Order Form, as it may be amended. For fixed-price engagements, invoices shall be issued as specified in the applicable Order Form.
All invoices are due and Customer shall pay all undisputed invoices immediately upon receipt of such invoice. All payments shall be made by Customer to Agency in U.S. Dollars. All amounts due which are not in dispute and remain unpaid for fifteen (15) days or more from the due date are subject to a monthly interest charge equal to one half percent (.5%) per month on the outstanding balance, provided such amount shall not exceed the maximum amount allowed by law. If any invoice remains unpaid after 15 days, the Service Provider has the right to suspend or terminate the provision of Services.
Any adjustment to the agreed terms, including changes to the scope of services, team composition (increase or decrease in size), payment model, or billing period, requires the signing of a new Order Form by both parties before the changes take effect.
The Customer agrees to cover up to a total of 24 working days per year for both vacation and sick leave per team member. This coverage starts after six months of collaboration; during the initial period, any days off or sick leave will result in a pro-rated adjustment to the monthly fee. Public holidays recognized under Ukrainian law are treated as non-working days and do not reduce the monthly fee or count towards the annual allowance of vacation or sick leave days.
For fixed-price engagements, at any time during the term of this Agreement, Customer may request a modification or additional services as set forth below.
Customer shall submit to Agency in writing all requests by Customer for any such modification of services which alters, amends, enhances, or adds to the services and/or time and/or place of performance (hereinafter referred to as “Modification/Change Request” or “Request”). Agency shall promptly calculate and provide for Customer’s approval any additional cost and extension of time to complete the Request.
Upon approval of the Modification/Change Request in writing, Agency will implement such Request immediately. Agency shall not perform any services in advance of written authorization from Customer (email is sufficient). In no event shall the services be deemed altered, amended, enhanced, reduced, or otherwise modified except through written authorization by Customer of a Modification/Change Request and acceptance by Agency, all in accordance with this Section 4.
Agency represents and warrants to Customer that all Services, work and deliverables to be performed hereunder shall be performed by qualified personnel in a professional and workmanlike manner, in accordance with the industry standards. All services shall be rendered to the reasonable satisfaction of Customer.
Agency represents and warrants to Customer that upon payment in full Customer will receive good and valid title to all deliverables delivered by Agency to Customer under this Agreement, free and clear of all encumbrances and liens of any type.
Agency represents and warrants to Customer that neither Agency, in connection with performing the Services, nor the completed deliverables will infringe any patent, copyright, trademark, trade secret or other proprietary right of any third party. Agency further represents and warrants to Customer that Agency will not use any trade secrets or confidential or proprietary information owned by any third party in performing the Services. Agency further represents and warrants to Customer that neither Agency nor any other company or individual performing Services pursuant to this Agreement is under any obligation to assign or give any work done under this Agreement to any third party.
Agency represents and warrants that all individuals who contribute to or participate in the conception, creation, or development of the Services and any deliverables will have unconditionally and irrevocably assigned all of their right, title, and interest in and to any work product (and all intellectual property rights thereto) to Agency (or directly to Customer) before being allowed to perform Services.
EXCEPT AS PROVIDED IN THIS AGREEMENT, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RESPECTING THIS AGREEMENT AND THE SERVICES.
Customer expressly acknowledges and agrees that (i) Agency does not warrant that the System will meet all of Customer’s needs or that its operation will be uninterrupted or error-free; and (ii) Agency shall have no obligations for ensuring or perfecting its operation on or compatibility with any current or future version or release of any hardware, equipment or operating software or other software products which Customer may acquire or receive from any source, excluding Agency.
Agency shall upon completion or termination of this Agreement, or upon demand by the Customer, for whatever cause, promptly return to the Customer any and all proprietary information of Customer together with any copies or reproductions thereof.
The parties acknowledge that any work performed by Agency for Customer is being created at the insistence of Customer and shall be deemed “work made for hire” under United States copyright law, provided that actual title to any work shall not pass until payment in full has been made.
The following terms apply to any infringement or claim or infringement of any patent, trademark, copyright, trade secret or other proprietary interest based on the licensing, use, or sale of any software, software products and/or Services furnished to Customer under this Agreement. Subject to the limitations contained in this Agreement, Agency shall indemnify Customer for any third party loss, damage, expense or liability, including costs and reasonable attorney fees that may result by reason of any such infringement or claim, except where such infringement or claim arises solely from Agency’s adherence to Customer’s written instructions or directions which involve the use of merchandise and items other than (1) commercial merchandise which is available on the open market or is the same as such merchandise, or (2) items of Agency’s origin, design or selection; and Customer shall so indemnify Agency in such excepted cases. Each party shall defend or settle, at its own expense, any action or suit against the other for which it is responsible hereunder. Each party shall notify the other promptly of any claim of infringement for which the other is responsible, and shall cooperate with the other in every reasonable way to facilitate the defense of any such claim.
In addition, in the event an injunction or order shall be obtained against Customer’s use of any item by reason of any such infringement allegation, or if the item is likely to become the subject of a claim of infringement or violation of any existing United States patent, trademark, copyright, trade secret or other proprietary right of a third party, Agency will, without in any way limiting the foregoing, at Agency’s expense, either: (i) procure for Customer the right to continue using the item; or (ii) replace or modify the item so that it becomes non-infringing, but only if the modification or replacement does not adversely affect the functional performance or specifications for the item or its use by Customer.
In no event shall Customer be liable to Agency for any charges after the date that Customer no longer uses the item because of actual or claimed infringement.
It is the intention of the parties hereto that this Agreement and the performances hereunder and all suits and special proceedings, arbitration, mediation or similar proceedings hereunder be construed in accordance with and under and pursuant to the laws of the State of California, excluding its principle of conflicts of laws.
All claims and disputes between the parties are to be settled by binding arbitration before a single arbitrator pursuant to the American Arbitration Association (AAA) rules and as shall be held in Los Angeles County, California. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all decisions. Any such arbitration shall be conducted by an arbitrator experienced in technology transactions and shall include a written record of the arbitration hearing. An award of arbitration may be confirmed in a court of competent jurisdiction.
Neither party may assign this Agreement in whole or in part without the written consent of the other party, which consent will not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, no permitted assignment shall operate to relieve the assigning Party of its obligations under this Agreement. Further notwithstanding the foregoing, a Party may so assign, transfer and delegate its rights and obligations under the Agreement, without such consent, to an Affiliate, or to a successor in connection with a merger, acquisition, or sale involving substantially all of such Party’s business or assets. Subject to the foregoing, this Agreement shall be binding upon, enforceable by, and inure to the benefit of, the Parties and their respective successors and permitted assigns.
Agency is and shall at all times be an independent contractor and shall not be deemed an employee or agent of Customer. Nothing in this Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture between the parties. Customer is interested in the results obtained by Agency, who shall have control of the manner and means of performing Agency’s obligations hereunder.
Agency shall have the right to list Customer as client in its marketing and promotion and to be able to showcase its work in Agency’s portfolio and in case studies.
These Terms and Conditions and the Order Form(s) contain the entire agreement between the parties and shall, as of the effective date hereof, supersede all other agreements, written and oral, between the parties relating to the subject matter hereof. Each of the parties hereto acknowledges that they have relied on their own judgment and the advice of counsel in entering into this Agreement.
