Services Agreement

Your agreement with Flexum (“Agency”) for the services that you (“Customer”) have ordered is subject to the following terms and conditions.

1. Term

The Term shall be for a period consistent with the pricing plan selected and the services as agreed with Flexum. Notwithstanding the foregoing, Customer shall have the right within the first thirty three (33) days of the Term to terminate this Agreement and only pay the first month’s fees. Thereafter, the Term shall continue for at least the minimum period as set forth in the pricing plan/subscription service selected and for such additional time period as the parties may agree (email is sufficient). Agency shall have the right to terminate for any reason at any time on fifteen days’ notice.

2. Services and System Development

a) Agency Responsibilities

(i) General
In consideration of the fees, Agency will provide the Customer ongoing software development and consulting/design services in the following areas (collectively, the “Services”): Agency will develop, maintain, customize, distribute and manage front end and back end software for Customer’s applications per the subscription service; 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 (to be modified based on mutual agreement; email is sufficient) approximating the labor as set forth in the pricing plan/subscription selected.

(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.

b) Customer Responsibilities

(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.

3.Fees and Payment

a) Rates

Customer agrees that, for the term of this Agreement, it shall pay for the staffing levels, skill mix, and labor as set forth in the pricing plan selected. All bank charges associated with transfer funds are charged to the Customer.

b) Invoices

At the start of each month, Agency shall provide Customer an invoice based on the pricing plan selected, provided that for any services which commence after the first of a month, Agency shall provide a pro-rated invoice.

c) Payments

Customer shall pay all undisputed invoices 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 the provision of Services.

4. Change of Scope

At any time during the term of this Agreement, Customer may request a modification or additional services as set forth below.

a) Submission of Request

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.

b) Performance

Upon approval of the Modification/Change Request, 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.

5. Warranty and Warranty Disclaimer

a)

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.

b)

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.

c)

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.

d)

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.

e)

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.

f)

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.

6. Return of Materials

a) Completion or Termination

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 together with any copies or reproductions thereof.

7. Rights in Work

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.

8. Intellectual Property Indemnification

a)

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.

b)

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.

c)

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.

9. Choice of Law

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.

10. Arbitration

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.

11. Assignment

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.

12. Independent Contractor

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.

13. Publicity

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.

14. Entire Agreement

These Terms and Conditions 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.

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