This Services Agreement (“Agreement”) is entered into as of the earlier of the date paymis remitted or commencement of services (“Effective Date”), by and between AltaFlux Corporation (“AltaFlux”), with offices at 3250 West Big Beaver Road, Suite 342, Troy, MI 48084 and Client Name (“Client”) with offices located at Client Address. Collectively AltaFlux and Client may be referred to as the “Parties” or each individually as a “Party”. This Agreement and its incorporated documents set forth the terms and conditions under which Client agrees to accept services from AltaFlux.
- Contract Services. Client may, from time to time request AltaFlux to perform certain services as described in the accompanying purchasing link or URL (the “Services”). Upon written acceptance by AltaFlux, AltaFlux shall provide such Services to Client as specified in this Agreement. Client is responsible for obtaining all licensed software subscriptions necessary for AltaFlux to perform the requested Services under this Agreement except as otherwise provided in this Agreement. Client understands and agrees that AltaFlux will not be responsible for any beta or defective product features, product performance issues or any delays caused by licensed software subscription vendor(s).
- Access. Client agrees to provide AltaFlux or AltaFlux’s designee access to Client’s instance with appropriate security, authorization and credentials and acknowledges AltaFlux requires timely access to Client’s instance and/or other systems to provide the Services. Client acknowledges and agrees that if AltaFlux’s access to Client’s instance and system(s) is limited or restricted in any manner, it may result in a delay of AltaFlux’s Services.
- Compensation. Client shall prepay AltaFlux according to the fees, rates and payment terms set forth in the accompanying purchasing link or URL. AltaFlux reserves the right to require additional payment in the event Client needs exceed the Services contemplated in the accompanying purchasing link or URL. Prior to performing work outside the scope of the Services which would require additional payment, AltaFlux will notify the Client and the Client may accept or reject the additional Services.
- Intellectual Property. All rights in and to any business opportunities, inventions, improvements, betterments, discoveries, processes, formulae, designs, trademarks, copyrights and patents, and all applications therefor, prepared or developed or contributed to by AltaFlux, alone or with others, relating in any way to Services shall vest in the Client upon completion of the Services. To the extent that any Service incorporates AltaFlux’s or any third-party software, Client shall agree to the terms of and shall have only the rights specified in the applicable license agreement. AltaFlux retains all title, rights, and interest to all such AltaFlux materials and hereby grants to Client a nonexclusive, royalty-free, perpetual license to use, reproduce, modify and prepare derivative works of such AltaFlux materials for Client’s use only and so long as Client is not in breach of this Agreement; provided however, that AltaFlux retains all right, title and interest to all AltaFlux materials and all modifications and derivative works thereof. Upon Client’s request, AltaFlux shall identify the AltaFlux materials for the Client.
- Confidentiality. “Confidential Information” means certain written, oral, visual, and/or electronic information relating to trade secrets and proprietary interests of a Party. Confidential Information does not include information which: (a) is known to any Party at the time of disclosure as evidenced by written records of the non-producing Party; (b) becomes publicly known and made generally available through no wrongful act; (c) has been rightfully received by a Party from a third party who is authorized to make such disclosure; (d) is approved for released by written authorization of an officer of the non-disclosing Party; and (e) information that is required to be disclosed pursuant to the requirement of a government agency or by operation of law. The Confidential Information disclosed by AltaFlux, regardless of form, is, and shall always remain, the sole and exclusive property of AltaFlux. Client shall not reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects that embody the Confidential Information. Client shall not, whether during the term of this Agreement, or thereafter, regardless of the time, manner, reason or lack of same, directly or indirectly, disclose to any person, firm or corporation, or permit to be used any Confidential Information, or divulge any other information concerning the business of AltaFlux that it has or acquires. Upon the request of AltaFlux or termination of this Agreement, Client shall deliver immediately to AltaFlux all Confidential Information, materials, products, supplies, property, and equipment which may be in Client’s possession which do not constitute Services. Client acknowledges that any breach of this Agreement could cause irreparable damage to AltaFlux and that, in the event of such breach or contemplated future breach, AltaFlux shall have the right, without being required to post bond or other security, to obtain ex parte injunctive relief, including without limitation, specific performance or other equitable relief, to prevent the violation of Client’s obligations hereunder.
- Client warrants and represents to AltaFlux that (i): Client owns or has obtained or possesses licenses to all software used by AltaFlux or necessary for the Services except licenses which will be provided by AltaFlux pursuant to the terms of this Agreement, and (ii) Client shall provide complete and accurate information to AltaFlux concerning the nature and extent of the Services (iii) Client shall immediately, and no later than 24 hours, report all workplace accidents, injuries, and/or complaints relating to the Services; (iv) comply with any directives from AltaFlux; (v) assist AltaFlux in defending claims or litigation that in any way relates to this Agreement or the Services including, but not limited to, the completing discovery responses, attending hearings, and depositions.
- Indemnification. Client shall unconditionally and absolutely indemnify, defend and hold harmless AltaFlux from and against any and all claims, causes of action, demands, damages, liabilities, costs, reasonable attorneys’ fees, losses, and expenses of every nature and kind whatsoever that in any way relate to Client’s performance pursuant to the terms this Agreement. AltaFlux shall have the right to select the attorneys of its choice to defend AltaFlux, at Client’s sole cost and expense, and to make all decisions and in every respect control the manner in which AltaFlux is defended.
- Limitation of Liability. IN NO EVENT SHALL ALTAFLUX BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL THEORY (I) WITH RESPECT TO THE SERVICES FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), OR (II) FOR ANY DIRECT DAMAGES IN EXCESS OF THE AMOUNT OF FEES TO BE PAID UNDER THIS AGREEMENT, EVEN IF ALTAFLUX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. UNDER NO CIRCUMSTANCES WILL ALTAFLUX BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. NOTWITHSTANDING ANYTHING TO THE CONTRARY, ALTAFLUX’S LIABILITY SHALL BE LIMITED TO THE PAYMENTS RECEIVED BY CLIENT RELATING TO THE SERVICES THAT ARE AT ISSUE OR REPERFORMANCE OF THE SERVICES AS DECIDED IN THE SOLE DISCRETION OF ALTAFLUX.
- This Agreement shall remain in effect until AltaFlux has completed the Services or either Party terminates this Agreement upon thirty (30) days’ written notice to the other.
- Non-Solicitation. For a period of twelve (12) months after termination of this Agreement, Client shall not employ any employees, subcontractors, consultants, or agents of AltaFlux, solicit for purposes of employment or association, and/or induce any employees or agents of AltaFlux to terminate such employment or association, or otherwise engage any employees or agents AltaFlux or permit such engagement to the extent Client has the authority to prevent same. If Client violates this Section or otherwise hires an employee, subcontractor, consultant, or agent of AltaFlux, Client shall pay Forty Percent (40%) of such individual’s total yearly compensation to AltaFlux, which shall be due and payable upon the execution of an agreement by and between such employee, subcontractor, consultant, or agent and Client.
- Miscellaneous. Upon the breach of any provision of this Agreement by either Party, the non-breaching Party shall be entitled to seek any and all remedies to which it may be entitled, subject to the terms of this Agreement, in law or in equity. This Agreement may be amended or revoked at any time by a written agreement executed by all of the Parties to this Agreement. No change or modification to this Agreement shall be valid unless in writing and signed by all of the Parties to this Agreement. If any action is required to collect any amount due under this Agreement, AltaFlux shall, in addition to other amounts due under this Agreement or law, be entitled to recover all cost and expenses, including its actual attorney's fees. Client agrees that any dispute concerning the interpretation, validity, enforceability, services provided to Client to exercise, and any remedies from an alleged breach of the Agreement must be adjudicated in Oakland County, Michigan, or the applicable district and division of a federal court having venue for disputes in that same county and apply Michigan law. The failure by any Party to enforce any provision of this Agreement shall not be construed as a waiver of any other breach, default or a waiver of the provision itself. This Agreement, including any documents expressly incorporated herein, contains the entire agreement between the Parties and no modification, amendment, change or supplement shall be effective unless in writing and signed by both Parties. This Agreement supersedes all prior understandings, negotiations and agreements relating to the subject matter hereof. Client waives the right to bring a claim as the named plaintiff or as a class member in any purported class or representative proceeding.
CLIENT ACKNOWLEDGES AND AGREES THAT BY SUBMITTING PAYMENT IT HAS REVIEWED THIS AGREEMENT AND UNDERSTANDS ITS TERMS. CLIENT AGREES TO BE BOUND BY ITS TERMS AND AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF AGREEMENT BETWEEN THE PARTIES, SUPERSEDING ALL OTHER COMMUNICATIONS OR REPRESENTATIONS ORAL OR WRITTEN.