Consulting services agreement

THIS CONSULTING SERVICES AGREEMENT (the “Agreement”) is entered into by and between CultureWise, LLC, a Massachusetts limited liability company (“CultureWise”), and the client identified on Schedule A (the “Client”) as of the last date set forth in the signature lines below (the “Effective Date”).

1. Services and Software. Client hereby engages CultureWise to provide to Client the services described on Schedule A (the “Services”), the terms of which are incorporated herein by reference. As part of the Services, CultureWise will provide Client access to the CultureSuite software described on Schedule A (the “Software”).

2. Fees; Payment Terms; Late Payments. CultureWise’s fees and payment terms are set forth on Schedule A. Unless otherwise set forth on Schedule A, Client shall pay CultureWise within thirty (30) days of receipt of each invoice from CultureWise upon the payment terms set forth in the invoice. Client agrees to reimburse CultureWise for all reasonable travel and out-of-pocket expenses incurred by CultureWise in connection with the performance of the Services, if any. Client shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder. Late payments will bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Client shall also reimburse CultureWise all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.

3. Software.

• Provision of Access. CultureWise hereby grants Client a non-exclusive, non-transferable (except in compliance with Section 9) right to access and use the Software during the Term, solely for Client’s internal use by Authorized Users. “Authorized Users” are Client’s employees, consultants, or contractors, who are authorized by Client to access and use the Software for the purposes of receiving the Services. The total number of Authorized Users will not exceed the number set forth on Schedule A, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the fees payable hereunder. CultureWise reserves all rights in the Software not expressly granted to Client in this Agreement, including all intellectual property rights therein.
  
  
• Use Restrictions. Client shall not use, nor permit any Authorized User to use, the Software for any purposes beyond the scope of the access granted in this Agreement. Without limiting the foregoing, Client shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Software; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software to any third party; (iii) reverse engineer, disassemble, or otherwise attempt to derive or gain access to any software component of the Software; (iv) remove any proprietary notices from the Software; or (v) use the Software in any manner not permitted by this Agreement.
• Suspension. Notwithstanding anything to the contrary in this Agreement, CultureWise may suspend Client’s and any Authorized User’s access to any portion or all of the Software if: (i) CultureWise reasonably determines that (A) Client’s or any Authorized User’s use of the CultureWise Materials poses a security risk; (B) Client, or any Authorized User, is using the CultureWise Materials for fraudulent or illegal activities; or (C) CultureWise’s provision of the Software to Client or any Authorized User is prohibited by applicable law; (ii) Client fails to pay any fees when due hereunder; or (iii) any vendor of CultureWise has suspended or terminated CultureWise’s access to or use of any third-party services or products required to enable Client to access the Software (any such suspension described in subclauses (i)-(iii), a “Service Suspension”). CultureWise shall use commercially reasonable efforts to provide written notice of any Service Suspension to Client and, in the cause of subclause (i) and (iii), to provide updates regarding resumption of access to the Software following any Service Suspension. CultureWise will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any Authorized User may incur as a result of a Service Suspension.
  
  
• Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, CultureWise may monitor Client’s use of the Software and collect and compile data and information related to Customer’s use of the Software that is used by CultureWise in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Software (“Aggregated Statistics”). CultureWise may use Aggregated Statistics as permitted under applicable law.

4. Intellectual Property Rights.

• Deliverables. All intellectual property rights, including copyrights, patents, inventions (whether patentable or not), trademarks, trade secrets, know-how, and domain names, together with all of the goodwill associated therewith (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Client under this Agreement or prepared by or on behalf of CultureWise in the course of performing the Services, including any items identified as such on Schedule A (collectively, the “Deliverables”) shall be owned by CultureWise. CultureWise hereby grants Client a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Client to make reasonable use of the Deliverables or the Services.
  
  
• Client Materials. Client and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to any Client content, Confidential Information (defined below) of Client, or other documentation provided to CultureWise by Client hereunder (collectively, “Client Materials”), including all Intellectual Property Rights therein. CultureWise shall have no right or license to use any Client Materials except solely during the Term to the extent necessary to provide the Services to Client.
  
  
• CultureWise Materials. CultureWise and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to all CultureWise content, Software, Confidential Information (defined below) of CultureWise, Aggregated Statistics, and other work product pre-existing as of the Effective Date or acquired independently of this Agreement (collectively, “CultureWise Materials”), including all Intellectual Property Rights therein. Except with respect to the Software, Client’s rights to which are already set forth in Section 3, CultureWise hereby grants Client a non-exclusive, irrevocable, perpetual, worldwide license to use any pre-existing CultureWise Materials solely to the extent incorporated in, combined with, or otherwise necessary for the use of the Deliverables or the Services. All other rights in and to the CultureWise Materials are expressly reserved by CultureWise.

5. Term and Termination. This Agreement commences as of the Effective Date and, unless terminated earlier, will continue for the term listed on Schedule A (the “Initial Term”). Unless earlier terminated, this Agreement will automatically renew on a month-to-month basis (each a “Renewal Term” and together with the Initial Term, the “Term”) unless a party gives the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term. Either party may terminate this Agreement during a Renewal Term upon written notice to the other party. In such case, this Agreement will automatically terminate at the end of the month immediately following the month in which such written notice was given.
   
   
6. Representations and Warranties. CultureWise represents and warrants that the Services will be provided in a professional and workmanlike manner. CultureWise’s sole and exclusive liability and Client’s sole and exclusive remedy for a breach of this warranty shall be that CultureWise shall use reasonable commercial efforts to promptly cure any such breach. EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION 6, CULTUREWISE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY OF TITLE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
   
   
7. Limitation of Liability. IN NO EVENT WILL (A) EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO CULTUREWISE PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATION IN THIS SECTION 7(B) DOES NOT APPLY TO DAMAGES OR OTHER LIABILITIES ARISING OUT OF OR RELATING TO A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR INTENTIONAL ACTS.
   
   
8. Confidentiality; Non-Disclosure. During the Term, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or, if not, would reasonably be understood to be confidential given the nature of such information (collectively, “Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 8; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source that, to the Receiving Party’s knowledge, was not restricted from disclosing such information; (c) the Receiving Party establishes by documentary evidence was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) the Receiving Party establishes by documentary evidence was or is independently developed by Receiving Party without using any of the Disclosing Party’s Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the employees or contractors of the Receiving Party who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement and are bound by confidentiality obligations similar to those set forth herein. The parties acknowledge that any breach, or threatened breach, of this Section 8 could cause irreparable damage and that in the event of such breach, or threatened breach, a party shall have, in addition to any and all remedies of law, the right to an injunction, specific performance as well as all other equitable relief to prevent the violation of the other party’s obligations hereunder without the necessity of any proof of actual damages or the posting of a bond or other security.

9. Miscellaneous. This Agreement, including its schedules, constitutes the entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to such subject matter. No amendment to this Agreement is effective unless it is in writing and signed by each party. If any term of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement nor invalidate or render unenforceable such term or provision in any other jurisdiction. CultureWise shall perform all Services as an independent contractor and not as an employee or agent of Client. The headings and captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the Commonwealth of Massachusetts. Venue for any dispute related to this Agreement shall be in the state or federal courts located in the City of Boston, Commonwealth of Massachusetts. Neither party may assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other party. Any purported assignment or delegation in violation of this Section 9 shall be null and void.