TERMS AND CONDITIONS OF CONSULTING SERVICES

Effective and Last Updated June 15th, 2014

These Terms and Conditions of Consulting Services (hereinafter the “Agreement” or the “Terms”) are entered into and accepted by you/Customer (“CUSTOMER” or “You”) and us, ELYSEE GROUP, LLC. a New Limited Liability Company with an address for the purposes of this agreement at 62 William Street, 9th floor, C/O Francois Peyrot, Esq. New York, NY 10005 (hereinafter the “ELYSEE GROUP”, “we” or “us”).

ELYSEE GROUP agrees to provide professional services to CUSTOMER under the following terms and conditions (the “Agreement” or the “Terms”). By agreeing to have ELYSEE GROUP perform professional services for CUSTOMER, CUSTOMER agrees to be bound by this Agreement:

1. Professional Services.

1.1 ELYSEE GROUP will provide CUSTOMER with a specified number of days or hours of professional services ("Services") as set forth in a statement of work signed or approved by CUSTOMER and ELYSEE GROUP (“Statement of Work”) or as otherwise agreed to by ELYSEE GROUP and CUSTOMER. The parties may choose to define a set of deliverables as described in a Statement of Work. If deliverables are defined by the parties, ELYSEE GROUP will use its commercially reasonable efforts to provide such deliverables (the “Deliverables”), but will not be obligated to provide Services beyond the hours or days set forth in the Statement of Work. In the event that a Statement of Work is not specified, ELYSEE GROUP will use commercially reasonable efforts to provide such Services as requested by CUSTOMER up to the number of hours or days agreed by the parties.

1.2 ELYSEE GROUP will provide such resources and utilize such employees and/or consultants as it deems necessary to perform the Services. CUSTOMER agrees to furnish ELYSEE GROUP with adequate technical assistance, network access, materials, and an environment suitable for ELYSEE GROUP to be able to perform the Services. As the case may be and when applicable, CUSTOMER further agrees to provide ELYSEE GROUP with such technology owned or controlled by CUSTOMER (the "Licensed Technology") as ELYSEE GROUP reasonably requires to perform the Services.

1.3 CUSTOMER and ELYSEE GROUP agree to cooperate in good faith to achieve completion of the Services in a timely and professional manner. ELYSEE GROUP shall bear no liability or otherwise be responsible for delays in the provision of Services or any portion thereof occasioned by CUSTOMER's failure to timely complete a CUSTOMER task or adhere to a CUSTOMER schedule.

1.4 Under this Agreement, ELYSEE GROUP is not providing or licensing to CUSTOMER any existing or future ELYSEE GROUP software programs or products. CUSTOMER may acquire licenses to such ELYSEE GROUP products only under the terms of a separate software license agreement.

2. Term of Agreement.

This Agreement commences on the earlier of the date of the Statement of Work, Purchase Order, or date that ELYSEE GROUP begins providing Services (“Effective Date”) and, unless terminated earlier pursuant to the terms of the Agreement, shall continue in force until exhaustion of the number of consulting hours or days identified in the Statement of Work or as otherwise agreed to by ELYSEE GROUP and CUSTOMER.

3. Right to Perform Consulting Services.

CUSTOMER acknowledges that ELYSEE GROUP has extensive expertise, experience, and proprietary products and tools in the area of IT Services, and that ELYSEE GROUP intends to utilize such expertise, experience, products and tools in providing consulting services and other services in such field to other clients. Subject to ELYSEE GROUP's compliance with the confidentiality provisions stated herein, nothing in this Agreement shall restrict or limit ELYSEE GROUP from performing such development, consulting or other services to any other entity in any industry.

4. Services Fees, Expenses and Invoicing.

When CUSTOMER purchases the Services directly from ELYSEE GROUP, the following provisions shall apply:

4.1 For the Services provided by ELYSEE GROUP, CUSTOMER agrees to pay ELYSEE GROUP the fees set forth in a quote issued by ELYSEE GROUP to CUSTOMER or as otherwise agreed to by ELYSEE GROUP and CUSTOMER (the “Payment Schedule”) plus any applicable taxes or other charges. Unless agreed otherwise in writing between the parties, CUSTOMER also shall reimburse ELYSEE GROUP for actual, reasonable travel and out-of-pocket expenses incurred in accordance with ELYSEE GROUP’s business expense policy.

4.2 The amounts payable to ELYSEE GROUP set forth in the Payment Schedule are exclusive of applicable taxes or governmental charges. CUSTOMER shall be responsible for payment of all such taxes or charges except for any taxes. If CUSTOMER is required to pay any taxes based on this Section 4.2, CUSTOMER shall pay such taxes with no reduction or offset in the amounts payable to ELYSEE GROUP hereunder.

4.3 Unless otherwise set forth in a Statement of Work, ELYSEE GROUP will invoice on a monthly basis for all Services fees and reimbursable expenses that have accrued. Each invoice shall be due and payable within thirty (30) days of date of a proper invoice, and shall be deemed overdue if they remain unpaid beyond that point. If past due amounts owing from CUSTOMER are not paid within thirty (30) days, the unpaid amount shall accrue interest at the rate of 1.0% per month, or at the highest legal interest rate, if less.

5. Intellectual Property Rights.

As the case may be and except as described below, the Deliverables which are first produced or created for CUSTOMER by ELYSEE GROUP under a Statement of Work incorporating this Agreement shall be the property of CUSTOMER and shall be considered works made for hire under this Agreement.

Notwithstanding the foregoing, any developed technology, including patentable and patentable ideas, know-how, technical data, or techniques, and all intellectual property rights appurtenant thereto which may be developed by ELYSEE GROUP under this Agreement or in the delivery of any services hereunder that derive from, improve, enhance or modify ELYSEE GROUP’s product(s) or preexisting intellectual property, will be and remain the property of ELYSEE GROUP (collectively, “ELYSEE GROUP Developments”). CUSTOMER will have a non-exclusive license to the ELYSEE GROUP Developments to the extent necessary to enable CUSTOMER to use any ELYSEE GROUP Deliverable(s). Subject to the limitations placed on ELYSEE GROUP by the confidentiality provisions of this Agreement or by any existing non-disclosure agreement between ELYSEE GROUP and CUSTOMER, ELYSEE GROUP may in its sole discretion develop, use, market, license, or sell the ELYSEE GROUP Developments and any software, application or product that is similar or related to that which was developed by ELYSEE GROUP for CUSTOMER. ELYSEE GROUP shall not be required to disclose information concerning any ELYSEE GROUP Developments which ELYSEE GROUP deems to be proprietary or confidential.

6. Limited Warranties and Exceptions.

6.1 ELYSEE GROUP warrants that the Services provided hereunder will be performed in a professional manner consistent with the quality of ELYSEE GROUP's performance of services for similarly situated CUSTOMERs and in accordance with generally accepted industry standards. ELYSEE GROUP makes no guarantees or assurances that the Services will achieve CUSTOMER’s specific goals or provide additional functionality to CUSTOMER’s ELYSEE GROUP appliance.

6.2 TO THE FULLEST EXTENT PERMITTED BY LAW, ELYSEE GROUP EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES. IN THOSE JURISDICTIONS, SUCH INAPPLICABILITY WILL NOT AFFECT THE REMAINDER OF THE PROVISIONS IN THIS AGREEMENT.

6.3 In order to receive warranty remedies, deficiencies in the Services must be reported to ELYSEE GROUP in writing at the notice address within thirty (30) days of completion of the Services. After such time, any corrective Services requested by CUSTOMER shall be billed to CUSTOMER at ELYSEE GROUP’s standard consulting rates then in effect and subject to scheduling availability of ELYSEE GROUP personnel. CUSTOMER's sole remedy for a breach of the warranty described in Section 6.1 shall be re-performance of the non-conforming Services or to receive a refund of the pro rata amount of the fees allocable to such non-conforming Services, at ELYSEE GROUP's option.

6.4 ELYSEE GROUP’s maximum liability for any breach of warranty hereunder shall be a refund of the applicable Services fees paid under this Agreement. CUSTOMER shall, under no circumstances except as may be specifically set forth in a separate agreement, be entitled to a refund of any fees paid with respect to any ELYSEE GROUP products.

7. Termination.

7.1 This Agreement may be terminated by either party upon thirty (30) days' prior written notice if the other party materially breaches or fails to perform any material term hereof and the breaching party fails to cure such breach within the 30-day period; provided, that the non-breaching party may immediately terminate this Agreement upon written notice for a breach of the provisions set forth in Section 10 (Confidentiality, Non-Use and Non Solicitation) or misappropriation by the other party of the non-breaching party’s intellectual property rights.

7.2 Each party's obligations under Sections 3-12 of the Agreement shall survive termination or expiration of the Agreement. If ELYSEE GROUP terminates the Agreement for failure of CUSTOMER to pay any amounts owing hereunder, the rights of CUSTOMER to use the Deliverables including any express or implied licenses which may have been granted herein shall immediately terminate.

8. Indemnification.

ELYSEE GROUP and CUSTOMER each agrees to indemnify, defend and hold the other, its affiliates, and their respective officers, directors, employees, and agents ("Indemnitees") harmless from and against any and all liabilities, losses, damages, costs, and expenses ("Losses"), and any reasonable attorney's fees and expenses relating to its defense, resulting from any third party suit or action brought against the Indemnitees due to third party claims for death, bodily injury or the damage to or loss of any real or tangible personal property to the extent arising out of the indemnitor's negligence or willful misconduct in the performance of this Agreement. CUSTOMER shall further indemnify and hold harmless ELYSEE GROUP from and against all liability, claims, actions and any other losses, incurred by ELYSEE GROUP, arising as a result of or in connection with this Agreement (including but not limited to, for example, alleged liability based on the relationship of the Parties, breach, misrepresentation). This provision shall survive (remain independently binding and enforceable after) termination of this Agreement.

9. Limitations on Liability.

EXCEPT FOR DAMAGES OR LOSSES ARISING FROM A BREACH OF THE NON SOLICITATION CLAUSE PROVIDED HEREUNDER OR INFRINGEMENT OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (INCLUDING ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY) OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS ARISING  OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ELYSEE GROUP'S TOTAL AGGREGATE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATIONS DO NOT APPLY TO ANY LIABILITY FOR DEATH OR PERSONAL INJURY OR TO ANY LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED BY THE GOVERNING LAW OF THIS AGREEMENT AS SET OUT IN SECTION 12.

10. Confidentiality, Non-Use and Non-Solicitation

10.1 By virtue of this Agreement, each party hereto may disclose to the other party information that is confidential and otherwise proprietary. Unless governed by the terms of an existing or contemporaneously executed non-disclosure agreement ("NDA"), the following Sections 10.2 and 10.3 apply.

10.2 Subject to the exceptions listed below, a party's "Confidential Information" shall be defined as information disclosed by the party to the other party under this Agreement and clearly marked or otherwise clearly designated as "confidential" or information disclosed by one party that is reasonably understood by the other party to be confidential. As the case may be, the licensed technology, ELYSEE GROUP’s proprietary software applications and hardware and the terms and pricing of this Agreement shall automatically be considered Confidential Information under this Agreement. However, a party's Confidential Information shall not include any information that: (a) is or becomes a part of the public domain through no act or omission of the other party; or (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; or (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party by employees or agents without access to the party's Confidential Information.

10.3 Each party agrees, for the term of this Agreement and three (3) years after its expiration or termination, to hold the other party's Confidential Information in strict confidence, not to disclose such Confidential Information to third parties not authorized by the disclosing party to receive such Confidential Information, and not to use such Confidential Information for any purpose except as expressly permitted hereunder. Each party agrees to take reasonable steps to protect the other party's Confidential Information and to ensure that such Confidential Information is not disclosed, distributed or used in violation of the provisions of this Agreement. The foregoing prohibition on disclosure of Confidential Information shall not apply to the extent certain Confidential Information is required to be disclosed by the receiving party as a matter of law or by order of a court, provided that the receiving party uses reasonable efforts to provide the disclosing party with prior notice of such obligation to disclose and reasonably assists in obtaining a protective order therefore.

10.4 NON SOLICITATION OF ELYSEE GROUP’S CONSULTANTS OR PERSONNEL.

CUSTOMER agrees that without expressed written consent of ELYSEE GROUP, at all times during the term of this Agreement or during the term of any expressed or implied continued contractual relationship while CUSTOMER is employing the services of ELYSEE GROUP and for a period of one (1) year thereafter -whichever term is longer-, CUSTOMER SHALL NOT, directly or indirectly attempt to or actually solicit, divert, hire, recruit, retain (including as a consultant) or encourage to leave the employment or contract period of ELYSEE GROUP any of ELYSEE GROUP’s employee, trainee or consultant or hire or retain (including as a consultant) any former employee or trainee of ELYSEE GROUP who has left the employment or contract period of ELYSEE GROUP within twenty-four (24) months prior to such hiring or retention.

 

CUSTOMER understands that in the event of CUSTOMER’s breach of the above non-solicitation covenants, consequential damages incurred by ELYSEE GROUP may be hard to appraise. Therefore, the parties hereto and CUSTOMER specifically hereby acknowledges and agrees that this Agreement fixed damages (liquidated damages) for breach of the above non-solicitation covenants by CUSTOMER shall be equal to a minimum of 120% of One Year of full time compensation of said employee, trainee or consultant that has been directly or indirectly solicited or hired by CUSTOMER or who has terminated his/her relationship with ELYSEE GROUP due to CUSTOMER’s breach of the non-solicitation covenant. In any event whatsoever, should the liquidated damages be less than $120,000.00 (one hundred twenty thousand dollar) per employee, trainee or consultant solicited, hired or who has terminated hi/her relationship with ELYSEE GROUP due to CUSTOMER’s breach.

 

ACKNOWLEDGEMENT: CUSTOMER agrees and acknowledges that its non-solicitation obligations hereunder are reasonable and understands that they are essential to the legitimate protection of ELYSEE GROUP’s business as a Consulting firm.

11. Independent Contractors.

ELYSEE GROUP shall perform the Services as an independent contractor, and nothing contained in this Agreement shall be construed to create or imply a joint venture, partnership, principal-agent or employment relationship between the parties. Neither party shall take any action or permit any action to be taken on its behalf which purports to be done in the name of or on behalf of the other party and shall have no power or authority to bind the other party to assume or create any obligation or responsibility express or implied on the other party's behalf or in its name, nor shall such party represent to any one that it has such power or authority.

12. Miscellaneous.

12.1 Governing Law and Jurisdiction.  This Agreement shall be exclusively governed by and interpreted under New York law. Any dispute arising out of or in connection with this Agreement shall be brought before the Court of the State of New York, County of New York.

12.2 Entire Agreement.  This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and supersedes all prior or contemporaneous discussions, understandings and agreements, whether oral or written, between them relating to the subject matter hereof.

12.3 Amendments and Waivers.  No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the Parties to this Agreement.  No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance.

12.4 Successors and Assigns.  Except as otherwise provided in this Agreement, this Agreement, and the rights and obligations of the Parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns, heirs, executors, administrators and legal representatives.  The ELYSEE GROUP may assign any of its rights and obligations under this Agreement.

12.5 Severability.  If any term or provision of this Agreement is determined to be invalid or unenforceable for any reason, it shall be adjusted rather than voided, if possible, to achieve the intent of the parties to the extent possible. In any event, all other terms and provisions shall be deemed valid and enforceable to the maximum extent possible.

12.6 Notices. Any Notices required under this Agreement must be in writing in English and delivered by certified or registered mail, return receipt requested, postage prepaid and addressed, in the case of the CUSTOMER, to the address in the Statement of Work or otherwise provided to ELYSEE GROUP, and in the case of ELYSEE GROUP, to the following Address: 62 William Street, 9th floor c/o Francois Peyrot, Esq., New York, NY 10005

12.7 Complete Agreement. This Agreement, the related Statement(s) of Work, and the documents referenced herein are the complete and exclusive statement of the agreement between the parties regarding the subject matter hereof, which supersedes all proposals, oral or written, and all other communications between the parties relating to such subject matter. Modification: Each party agrees that any terms and conditions of any purchase order or other instrument issued by CUSTOMER in connection with the Agreement that are in addition to or inconsistent with the terms and conditions of this Agreement shall be of no force or effect. 

12.8 Waiver. The failure of a party to enforce any provision of this Agreement shall not constitute a waiver of such provision or the right of such party to enforce such provision or any other provision.

 

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