Terms of Service

1.0 “Agents and Approved Assigns” unless specifically named herein, means the agents and assigns of either party to this Agreement of said party’s rights, duties or obligations hereunder, upon approval thereof by the other party in writing, such consent not to be unreasonably withheld;

1.1 “Agreement” means this Consulting Agreement and all attachments and schedules hereto, including any SOW attached or referencing this Consulting Agreement as its correlative source;

1.2 “Confidential Information” “Confidential Information” means Client Information, Grit Information, all Personally Identifiable Information, Inventions and Deliverables and all non-public information previously disclosed or otherwise made available by or on behalf of the applicable party before or during the term of the Agreement concerning Grit’s or the Client’s business, business plans, customers and clients, prospective clients, strategies, investments, trade secrets, operations, records, pricing, finances, assets, technology and data, and information that reveals the processes, methodologies, technology or know how of either party. Information disclosed without an appropriate letter, proprietary stamp or legend, shall constitute Confidential Information if it would be apparent to a reasonable person, familiar with the disclosing party’s business and industry that the information disclosed is nonpublic or confidential and proprietary in nature, maintenance of which is important to the disclosing party and its business relationships;

1.3 “Client” means the above-named client, its employees, principals, consultants, service providers, Agents and Approved Assigns, and other persons or entities now or in the future in control of or controlled by the above-named client, its members, or predecessors or all or any of the foregoing;

1.4 “Client Facilities” means all computer systems, networks, databases, hardware, software and Webware owned by or licensed by Client;

1.5 “Client Information” means all materials communicated or memorialized in writing, orally or electronically to, or otherwise obtained by Grit from Client in connection with this Agreement and materials created or produced by Grit as set forth below;

1.6 “Client Premises” means all Client locations and those where Client may have access, custody or control for pursuing its business;

1.7 “Completion” means the completion of the obligations and the exchange of consideration, as contemplated herein. In an engagement that is ongoing, this term signifies the completion of obligations and exchange of consideration by the Parties during the most recent term of service as set forth in the SOW;

1.8 “Consultant” means Grit;

1.9 “Consultant Information” means (a) all technology, software, documentation, research, techniques, processes, inventions, methodologies, data, tools, templates, knowledge, intellectual property and proprietary information belonging to or developed in the future by Consultant or its affiliates for Consultant or its customers other than Client and (b) the terms of this Agreement or their existence; For purposes of this Agreement, nothing herein shall convey ownership or rights in the Grit methodologies or technology.

1.10 “Consultant Person” means any individual employed or engaged by Consultant or any authorized subcontractor to perform Services for Client pursuant to this Agreement regardless of the location in which such Services are performed and regardless of whether such individual is an employee of Consultant or a subcontracting party;

1.11 “Deliverables” means one or more documents, services or other materials provided to Client by Grit in satisfaction of a Project, consistent with the applicable Project Instructions and Client Information;

1.12 “Effective Date”means the date this Agreement was last signed below;

1.13 Intentionally Left Blank;

1.14 Intentionally Left Blank;

1.15 “Invention” means materials developed by Grit specifically for the Client hereunder, including inventions, discoveries, programs, data, technology, designs, innovations and improvements (whether or not patentable and or copyrightable) (“Inventions”) which are made, conceived, reduced to practice, created, written, designed or developed by Grit, solely or jointly with others and whether during normal business hours or otherwise, in furtherance of the terms and conditions herein, including those resulting or directly derived from Confidential Information;

1.16 “Personally Identifiable Information”or “PII” means: (i) a combination of any information that identifies a person with that person’s sensitive and non-public financial, health or other data or attribute, such as a combination of the person’s name, address or location, phone number, social security number or other government issued number, financial account number, date of birth, address, biometric data, mother’s maiden name, or other personally identifiable information; (ii) any “nonpublic personal information” as that term is defined in the Gramm-Leach-Bliley Act, at 15 U.S.C. Subchapter 1, § 6809(4), and (iii) “protected health information” as defined in the Health Insurance Portability and Accountability Act;

1.17 “Project” means a specific request for a Deliverable by Client pursuant to the Statement of Work defined herein;

1.18 “Project Instructions” means, with respect to Projects and Deliverables set forth in the specific written instructions, requirements, and specifications provided by Client to Grit therein, which shall be written and attached hereto, made a part hereof on Schedule A hereto as a Statement of Work as defined herein;

1.19 “Services” means those services to be performed by Grit set forth in Schedule A;

1.20 “Statement of Work”or “SOW” means any agreement(s) mutually agreed upon and duly executed by Grit and Client, setting forth the details and parameters of Services provided hereunder, attached hereto and made a part hereof at Schedule A, or any other SOW attached or referencing this Consulting Agreement as its correlative source. In the event that terms of the SOW and this Agreement conflict, the terms of the SOW shall prevail;

1.21 “Term” means the period commencing on the Effective Date and ending on Completion or termination of this Agreement, including recommencement and renewals pursuant to the terms hereof;

2.1 Services. Grit shall provide to Client the Services specified in the SOW, and or to any subsequent SOW attached hereto. All aspects of the Services provided rely on Client input and participation in and utilization of the Services detailed in the SOW and Grit documentation. The terms of this Agreement shall apply to all Services from the date hereof until Completion;

2.2 Consultant Persons. Grit shall ensure that each Consultant Person providing Services is suitably qualified and experienced to participate in carrying out Grit’s obligations under this Agreement; has executed a suitable non-disclosure agreement or is otherwise bound by legally binding confidentiality obligations where required; is familiar with and complies with pertinent Grit and Client policies and procedures; performs the Services in a competent and professional manner; and endeavors to cause as little disruption as reasonably possible to Client employees, other contractors, or Client’s business while carrying out Grit’s obligations under this Agreement;

2.3 Client Information. Upon request, Client shall provide all Client Information that Grit requires to perform the Services, and shall perform any additional Client obligations set forth herein;

2.4 Cooperation. Client shall provide access to Client Facilities, Client Premises and Client Information that it is obligated to provide hereunder in a timely manner as required to perform the Services. Client acknowledges that any failure to provide, or delays in the provision of, Client Facilities, Client Premises or Client Information required for the Services will likely alter a Project timeline and cost and scope of a Project with no breach, liability, fault, cost or reduction in compensation hereunder to Grit;

2.5 Cooperation with Other Suppliers. If Client first gives reasonable prior written notice to Grit, Client may contract with other suppliers of products and services during the pendency of this Project, which interfere, interact with, impact or are used in conjunction with the Services. Grit shall reasonably cooperate with these suppliers, as set forth herein;

2.6 Marketing. Client hereby grants Grit permission and license to utilize Client’s name and logo in Grit’s client lists and marketing materials, including mention of Client as a client of Grit, links to Client’s website and demonstration of Client’s logo(s) and other public information.

3.1 Third Parties. Client and Grit shall each indemnify and hold each other harmless from third party claims, demands, causes of action, damages, costs, expenses and liabilities (collectively, “Losses”) incurred by reason of a breach of the due and proper performance of their respective obligations under this Agreement, including reasonable attorneys’ fees and costs, provided that the indemnitor shall have the right to consent to the designation of counsel, such consent not to be unreasonably withheld. This Section 3.1 shall survive termination of this Agreement.

3.2 Intellectual Property. Grit’s work relies on timely Client inputs, property, representations and materials, and so, unless otherwise agreed to herein, Client shall remain solely responsible for the intellectual property included in Grit work and the Deliverables developed hereunder. To that end, Client indemnifies and holds Grit harmless from damages, claims, and losses arising from or related to any assertion that the Services or Deliverables or Client’s use of the foregoing infringes upon, misappropriates or violates any third-party intellectual property right, including reasonable attorneys’ fees and costs.

3.3 Liability Limitation. As good and valuable consideration recognized above, except for instances of Grit’s gross negligence or criminal acts, Client releases and waives all claims against Grit pertaining to the subject matter hereof, including direct, indirect, incidental, punitive and consequential damages, those resulting from lost profits, lost data or business interruption, and actions based on warranty, contract or tort.

4.1 In relation to Client Information supplied to Grit:

• Grit, together with its employees, agents and authorized subcontractors, may use, copy and modify Client Information solely to the extent necessary for the provision of the Services during the Term;
• Client warrants that it has and shall maintain all necessary rights, approvals, licenses, etc., including current, legal, valid software licenses, to grant such license for Grit to access Client Information and perform the Services, and indemnifies Grit against liability for shortcomings on Client’s part regarding such rights, approvals,licenses, etc.; and
• Grit and Client each confirm that during all times relevant to this Agreement, they shall maintain industry standard or greater security measures and shall guard one another’s information as it guards its own.

5.1 Confidentiality of Information.

5.2 Works Made For Hire. Upon Completion, Inventions shall become “works made for hire” for the Client within the meaning of the Copyright Act of 1976, as amended, and shall then be the sole and exclusive property of the Client, for its use, reproduction and distribution by any and all means, methods and processes now known or subsequently developed. Notwithstanding, Client agrees that Grit shall retain such rights until Completion, and that Grit shall retain all rights to the technology and methodology of preparing its Consultant Information and that nothing herein shall compromise Grit’s rights thereto; for purposes of this Agreement, nothing herein shall convey ownership or rights in Grit’s methodologies or Consultant Information beyond the business purpose agreed to in the attached SOW(s);

6.1 Fees and Expenses. Client shall pay Grit the charges set forth in the SOW on the terms set forth in this Agreement. Unless expenses are specifically addressed in Schedule A hereto, Client agrees to reimburse Grit for reasonable expenses incurred in the performance of Services and as fall within the scope of the Services set forth herein;

6.2 Payment. Client shall pay Grit as set forth in each applicable invoice Grit issues, and agrees that all questions, clarifications or disputes of charges listed on any Grit invoice may only be made in writing, delivered to Grit within five (5) business days of the invoice date, after which time all invoiced charges are deemed accepted and approved by Client and final, and shall be charged pursuant to the terms set forth herein. Grit invoices are itemized with specificity to allow Client to understand the services, volume, time and amounts invoiced, and any other metrics Client may from time to time reasonably request. If Grit owes Client any agreed amounts under this Agreement, Client may set off such amounts from payments that Client owes to Grit if approved by Grit in writing beforehand. Payment shall constitute Client’s further irrevocable acceptance of Grit’s performance of all obligations under this Agreement up to and including the date of invoice, and the parties agree that any action to collect Grit’s unpaid fees and expenses due hereunder shall include all reasonable costs of collection, including attorney and other professional fees;

6.3 Timing of Payment, Penalty for Nonpayment. Unless payment timing is otherwise set forth in Schedule A hereto, Client shall pay Grit for each invoice using a valid credit card kept on file by Grit, within 7 days of the invoice. Any charge declined by the credit card carrier will be subject to a 5% late fee for every 15 days, and the Services Grit provides hereunder will be terminated for nonpayment pending restoration or new payment means provided by Client.

7.1 Mutual Representations. The Parties each represent and warrant to the other that: (a) each party and the person executing this Agreement on its behalf have full corporate or similar power and authority and have taken all action necessary to enter into and perform the obligations under this Agreement; (b) this Agreement constitutes the legal, valid and binding obligation of the Parties and is enforceable by its terms; (c) no consent, authorization or filing with any governmental authority is required in connection with execution, delivery, performance, validity or enforceability of this Agreement, and if such is required, copies have been provided to both Parties prior to entering into this Agreement; and, (d) the execution, performance and delivery of this Agreement shall not result in either Party violating applicable law or breaching or otherwise impairing any of its legal obligations;

7.2 Other Warranties. Grit also warrants and represents to Client that:

• Grit will provide the Services to the best of its ability and to relevant industry standards, but does not warrant or guarantee Client’s further use thereof following delivery if the results or materials provided at issue are manipulated or changed; and
• Grit will perform its obligations under this Agreement with the skill, care and diligence expected of a supplier of the Services;
• Grit has neither offered, given, received or agreed to give or receive any inducement or reward in connection with this Agreement;
• Reports, licensures and information required herein will be materially up to date and accurate;

7.3 Client Warranties.

8.1 Term. This Agreement shall become effective as of the Effective Date, and shall remain in effect through and including Completion unless otherwise set forth in the SOW or sooner terminated as provided herein..Notwithstanding, the Term shall specifically recommence on the GOLIVE date discussed in the SOW, and billing, renewals and timing shall be calculated from that GO LIVE date forward;

8.2 Termination for Convenience. Client shall have the right to terminate this Agreement for any reason and at any time on thirty (30) days prior written notice, such termination to become effective not before the conclusion of such period, without prejudice to the remaining terms herein, including paragraphs 5 and 6 above;

8.3 Termination for Cause. Without limiting the foregoing, and without prejudice to its other rights herein, Grit may terminate this Agreement upon written notice to Client if (i) it is unable to render Services in the manner set forth herein; (ii) Client commits a material breach of the Agreement capable of being cured but remaining uncured within five (5) business days of written notice of breach from Grit; or (iii) Client behaves in a manner that is dangerous, illegal or unprofessional;

9.1 Independent Contractors. In performance of the obligations hereunder, Grit is acting as a 1099 independent contractor, not an employee, partner or insider of Client. Client has not assumed, nor shall it be responsible to perform Grit’s regulatory or contractual obligations and with Grit’s consent and agreement, does not assume any responsibility for Grit’s business operations. Grit shall be solely responsible for the payment of compensation of Consultant Persons assigned to perform Services hereunder and Grit and Consultant Persons are not entitled to any Client employee benefits. None of Grit’s employees, Agents or Approved Assigns shall be considered employees of Client under any circumstances, unless pursuant to the terms and conditions herein;

9.2 Solicitation. In the event that Client directly or indirectly solicits and subsequently hires a Consultant Person, the Client agrees to pay Grit (i) 20% of the Client’s offered annual salary if the solicitation takes place between the date hereof and 90 days following Completion; (ii) 10% of the Client’s offered salary if the solicitation takes place between 91 and 180 days following Completion; (iii) and no fee will be paid if the solicitation takes place following 180 days following Completion;

9.3 Waivers. No failure or delay by Grit in exercising any right or remedy provided by law pursuant to this Agreement shall impair such right or remedy or operate as a waiver or variation of such right or remedy, nor shall it preclude Grit’s exercise at any subsequent time and to that end, no partial exercise of any such rights or remedies shall preclude any other or further exercise thereof;

9.4 Choice of Law, Forum. ThisAgreement occurs in and is governed by and construed in accordancewith the laws of the State of New York, without giving effect to itsconflicts of law principles. Any suit, action or proceeding arisingout of or relating to this Agreement shall take place in thecourts of Westchester County in the State of New York. Clienthereby submitsto this jurisdiction and waives objection to venue including forum non conveniens;

9.5 Dispute Resolution. The Parties agree that claims, disputes, or other matters in controversy arising out of or related to this Agreement shall be subject to binding arbitration. The parties shall endeavor to resolve such Claims by mediation which, unless mutually agreed otherwise, shall be administered by the American Arbitration Association in accordance with the rules and procedures of the American Arbitration Association(“AAA”) in effect on the date of the Agreement. A request for arbitration shall be made in writing, delivered to the other party to the Agreement and filed with the entity administering the arbitration. Any arbitration proceeding shall be held in Westchester County, in the state of New York unless another location is mutually agreed upon. Decisions in arbitration shall be enforceable as settlement agreements in the Supreme Court of the State of New York located in Westchester County.

9.6 Binding Nature and Assignment.  This Agreement shall be binding upon and inure solely to the benefit of Grit and Client, and their respective successors, Agents and Allowed Assigns;

9.7 Notices. Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given (a) if by hand delivery, upon receipt thereof, (b) if mailed, Seven (7) days after deposit in the United States mails, postage prepaid, certified mail return receipt requested, or (c) if by next day delivery service, upon such delivery. All notices shall be addressed to the Parties at the addresses indicated on the first page hereof;

9.8 Entire Agreement. This Agreement together with its attachments and any materials incorporated by specific reference, constitute the full and entire understanding and agreement between the Parties and supersede all prior agreements relating to the subject matter hereof. Amendments, waivers or discharges shall be valid only in writing and only signed by an authorized representative of Grit. All provisions of this Agreement relating to proprietary rights, confidentiality, non-disclosure, limitations of warranty and liability, indemnification rights, non-solicitation and Client's obligations to pay Grit for expenses incurred and Services and Deliverables to the extent rendered or completed, shall survive termination of this Agreement;

9.9 Conflicting Terms and Misc. If any terms of this document and an SOW attached hereto conflict with one another, the terms of the SOW shall prevail. Headings used in this Agreement including the SOW are used for convenience of reference and shall not be legally binding or in any way limit the terms hereof. Any gender pronouns used herein shall refer as broadly as possible to all genders inclusively, not exclusively.