Terms and Conditions

1)Services

  1. This Master Services Agreement (“Agreement”) is made on the date set forth above between Client and FlatOut DMS and shall apply to all services provided by FlatOut DMS to Client (“Services”) as described in any schedule attached hereto in the form of a Statement of Work, Task Order or similar documents executed by the parties during the term of this Agreement (collectively, “Attachments”). Services may include, but are not limited to: (i) consulting services, training, upgrade services, support services, implementation services, application design, systems analysis and design, third-party program installation, conversion and implementation planning, installation evaluations; and (ii) modifications, additions or customizations to standard software developed or produced by FlatOut DMS and provided to Client hereunder (“Modifications”).

  2. Each Attachment shall set forth, at a minimum, a description of the Services to be performed by FlatOut DMS which includes; (i) a list identifying the Services; (ii) the delivery and/or performance schedule; and (iii) the applicable fees.  FlatOut DMS shall have no obligation to provide Services other than those specified in any Attachment attached hereto.  Client may request additional Services in accordance with Section 1(c) below or by separate Attachment. Client shall pay for additional Services at FlatOut DMS’s then-current hourly rate or as set forth under an accepted Change Order (as defined below) or Attachment executed by both parties after the effective date and attached hereto and incorporated herein.  If Client requests Services be performed outside of normal business hours a premium rate for such Services as outlined in the Attachment will be charged.  An Attachment is binding only if executed by an authorized representative of each party hereto. 

  3. If Client desires to initiate changes to an existing Attachment, it shall submit to FlatOut DMS a written request to do so.  The request will set forth the nature of Client’s proposed changes, including any changes to the Services.  Upon Client’s submission of such a written request (“Change Request”), FlatOut DMS shall complete and return to Client a written document (“Change Order”) setting forth, at a minimum, a written description of any changes or additions to (i) the delivery schedule, (ii) the Services and (iii) the estimated charges, within fifteen (15) days after receipt of the Change Request.  Client shall accept or reject the Change Order within fifteen (15) days after receipt. If Client rejects the Change Order and it is based on a Change Request submitted by the Client, FlatOut DMS is entitled to reasonable compensation for the work performed in relation to the preparation of such Change Order. The compensation shall be calculated on a time and material basis using the hourly rates agreed in the applicable Attachment.  A Change Order will be binding only if signed by both parties.  Upon its execution, such Change Order will be deemed an amendment to the applicable Attachment.  

  4. FlatOut DMS makes no estimate of cost or completion date other than as expressly set forth in an Attachment.  Client understands that any such estimate does not bind FlatOut DMS and is provided only as a good-faith approximation based on information furnished to FlatOut DMS by Client.  FlatOut DMS will update its estimates at Client's request.   All Services are performed and Client agrees to pay for them on a time and material basis.

 

2) Term and Termination

  1. This Agreement is effective when signed by both parties (“Effective Date”), and shall continue in effect thereafter unless terminated as provided herein. 

  2. This Agreement and any Attachment hereunder may be terminated by either party upon written notice if the other party breaches any material term or condition of this Agreement and/or an Attachment and such breach is not cured within thirty (30) days following written notice from the party specifying the breach.  Notwithstanding anything else herein, FlatOut DMS shall have no obligation to provide any further Services hereunder while there is a material breach of a material term or condition of this Agreement.

  3. Immediately upon termination, Client shall pay FlatOut DMS for all Services provided or performed, expenses incurred prior to the date of termination and shall return to FlatOut DMS all FlatOut DMS property in Client’s possession or control, including all FlatOut DMS Confidential Information (as defined below in section 5), unless otherwise specified in this Agreement.  Any remedies available to the parties under this Agreement or at law shall survive termination.

 

3)Fees and Payments

  1. All service and block hour amounts payable hereunder will be invoiced, and shall be due and payable as set forth in the applicable Attachment (s).   All product sales are payable immediately upon approval of quotation or as set forth in the applicable Attachment (s).

  2. In the event that an invoice is not paid by the Client when due, FlatOut DMS reserves the right to charge interest on the unpaid balance at the rate of 1.5% monthly (19.56% per annum), but not to exceed the maximum rate permitted by law.  Additionally, FlatOut DMS may suspend performance under this Agreement and any Attachments until all overdue invoices and any other amount owed hereunder has been paid, in addition to and not in limitation of other available remedies.  All times estimated for performance or delivery will be extended by the number of days payments are late.

  3. Client shall review each invoice promptly upon receipt, and shall notify FlatOut DMS in writing within ten (10) days of the invoice date of any dispute as to the amount or validity of the invoice.  Such notice shall identify the invoice number, the basis for the dispute and the disputed amount.  If Client fails to deliver such notice in the allotted time, Client shall be deemed to have consented to the charges therein.  Notwithstanding anything else herein, Client shall pay the undisputed portion of any disputed invoice within the time for payment thereof. 

  4. All charges, rates and minimums are subject to change by FlatOut DMS upon thirty (30) days’ advance written notice, unless otherwise agreed in the applicable Attachment(s).

  5. Client will pay all reasonable travel, living and other expenses incurred by FlatOut DMS in performing under this Agreement, plus all applicable taxes.  Travel time will be billed at FlatOut DMS’s then-current hourly rate for round trip travel.

  6. Client agrees to pay any excise, sales, use, intangibles, property or other taxes that are invoiced by FlatOut DMS and levied by any tax authority based upon this Agreement and/or any products provided or services rendered by FlatOut DMS hereunder, excluding any taxes based upon FlatOut DMS’s income.

  7. Any deposits received in respect of Services will be applied to the fees invoiced for the applicable Services only.

 

4)Client Responsibility

In addition to, and not in limitation of, Client’s other obligations under this Agreement or any Attachments, Client shall have the following responsibilities:

  1. The Client will: (i) respond to requests from FlatOut DMS on a timely basis; (ii) have at least one (1) Client Contact, to be identified in an Attachment, present or available during regular business hours to provide information and assistance to FlatOut DMS; (iii) timely and accurately provide FlatOut DMS with all information and documentation necessary for FlatOut DMS to perform its obligations hereunder; (iv) make available to FlatOut DMS personnel familiar with the Client's requirements and with the expertise to permit FlatOut DMS to undertake and complete its obligations under this Agreement; (v) provide a safe area for FlatOut DMS to perform any Services required to be performed on or at any Client facility; (vi) provide for all power, environmental requirements, supplies, cabling, communications facilities, and all other equipment and facilities required; (vii) regularly back-up all files and data (except to the extent that FlatOut DMS is or will be providing such services pursuant to an Attachment); and (viii) provide access to the Client’s systems as reasonably requested by FlatOut DMS. 

 

5)Confidential Information

  1. Each party acknowledges that it may receive or have access to Confidential Information, as defined below, of the other party in the course of this Agreement.  Each party agrees to maintain the confidentiality of the other party’s Confidential Information and agrees not to use it except in performing its obligations under this Agreement, and further agrees not to disclose the Confidential Information to anyone except such of its employees, contractors, consultants and advisors who need access to the Confidential Information to perform their obligations to FlatOut DMS or the Client and who have agreed in writing to the restrictions on use and disclosure of Confidential Information set forth herein.  “Confidential Information” means any business or technical information of FlatOut DMS or Client that is designated by a party as “confidential” or “proprietary” at the time of disclosure or due to its nature or under the circumstances of its disclosure the party receiving such information knows or has reason to know should be treated as confidential or proprietary.

  2. Confidential Information shall not include information which:  (i) may be publicly disclosed by the party disclosing the information either prior to or subsequent to the receipt of such information by the receiving party; (ii) is or becomes generally known to the public through no fault of the receiving party; (iii) may be lawfully disclosed to the receiving party on a non-confidential basis by a third party who has lawfully acquired the Confidential Information and is not under a duty of confidentiality to the disclosing party with respect to such Confidential Information; or (iv) was independently developed by the receiving party without any use of Confidential Information as shown by contemporaneous written records; provided, however, that the receiving party hereby stipulates and agrees that, if it seeks to disclose, display, divulge, reveal, report, publish or transfer, for any purpose whatsoever, any otherwise Confidential Information, such receiving party will bear the burden of proving that that such information falls within one of these exclusions. 

  3.  If either party is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the receiving party shall: (a) promptly notify the disclosing party in writing of such requirement so that the disclosing party can seek a protective order or other remedy, or waive its rights hereunder; and (b) provide reasonable assistance to the disclosing party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the disclosing party waives compliance or, after providing the notice and assistance required under this Section, the receiving party remains required by law to disclose any Confidential Information, then the receiving party shall disclose only that portion of the Confidential Information that it is legally required to disclose and shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment. No such compelled disclosure by a party hereunder will otherwise affect its obligations hereunder with respect to the Confidential Information so disclosed.

 

6)Intellectual Property

  1. Ownership. Client stipulates and agrees that, as between the parties, FlatOut DMS is and will remain the exclusive owner of all rights, title and interests, including all intellectual property rights, in and to all Services and other work product, tangible or intangible, created or developed by FlatOut DMS in performing the Services.  In connection therewith, Client agrees further agrees to execute such documents, including, without limitation, assignments of copyright claims and patent applications, and to take such other actions as may be  requested by FlatOut DMS to evidence such rights without further consideration.  However, Client will own and/or retain all right, title and interest in and to data, information or other results generated by Client through Client’s use of the Services or any materials provided by Client to FlatOut DMS hereunder, including Client Confidential Information, and FlatOut DMS will not acquire any rights therein or thereto, other than the right to use the Client Confidential Information to the extent necessary to perform its obligations to Client hereunder.  

  2. License to Modifications. Provided that Client has paid all amounts related to the Modifications due to FlatOut DMS, FlatOut DMS hereby grants Client a perpetual, non-transferable, non-assignable, non-exclusive license to use the Modifications solely for Client’s internal business purposes only; or otherwise as approved in writing by FlatOut DMS, provided in all events that Client may not distribute, sub-license or disclose any such Modifications on a stand-alone basis to any third party.

 

7)Personnel

  1. FlatOut DMS personnel performing Services for Client under this Agreement may perform similar services for others during or after the term of this Agreement. FlatOut DMS will make reasonable efforts to honor specific requests of Client regarding assignment of FlatOut DMS personnel; however, FlatOut DMS reserves the sole right to make and change all such assignments.

 

8)Non-Solicitation

  1. During the term of this Agreement and for a one (1)-year period thereafter, neither party shall directly or indirectly, solicit for employment or for engagement as an independent contractor, or encourage leaving their employment or engagement, any employee or independent contractor of the other party.  For the avoidance of doubt, general public advertisements for employment or engagement, and responses thereto, shall not be deemed a violation of this Section. The parties agree that any breach of this section would damage the other party in the amount difficult to ascertain with certainty, and that in the event that either party breaches this provision resulting in the other party losing the services of an employee or independent contractor for any period of time, the breaching party shall pay to the other party an amount equal to the annual rate of compensation (with the non-breaching party) of the applicable employee or independent contractor.  In addition to money damages due under the foregoing provision or to which BANK  may otherwise be entitled, EMPLOYEE hereby agrees to indemnify BANK against reasonable attorneys' fees and other expenses incurred thereby as the result of any such breach and related violations of BANK’s other rights, including, without limitation, their rights under the legal doctrines listed in Section 5.6 below, and in the enforcement of their rights under this Agreement and otherwise in connection with any such breach or violations.

 

9)Warranties; Limitations of Liability

  1. FlatOut DMS undertakes to provide Services under this Agreement on a commercially reasonable basis, and all Services to be rendered by FlatOut DMS hereunder shall be performed in a workmanlike and professional manner in accordance with good practice within the industry.

  2. Each party represents and warrants to the other party that (i) it has the right to enter into this Agreement and perform its obligations hereunder; (ii) it is organized and validly existing under the laws of its jurisdiction in a corporate or other entity form; (iii) to the best of its knowledge there are no claims, actions or proceedings against it (including without limitation bankruptcy, dissolution, liquidation, or any assignments for the benefit of creditors) that would impair its ability to honor all legal obligations hereunder; (iv) the person executing this Agreement on its behalf has been authorized to do so; (v) no consent, authorization or approval of, or exemption by, any governmental or public body or authority, or by any person whether pursuant to contract or otherwise, is required in connection with the execution, delivery and performance of this Agreement; and (vi) the Agreement constitutes a valid, legal and binding obligation enforceable in accordance with its terms.

  3. Client also warrants to FlatOut DMS that (a) all information and materials provided by Client under this Agreement do not and will not (i) use or include any confidential or proprietary information or trade secrets of any third party, unless Client has received a written license or authorization from the owner thereof to use such information as contemplated hereunder; and (ii) does not violate the rights of any third party in any jurisdiction, including but not limited to copyright, trade secret, trademarks, publicity, privacy, patents or other rights; and (b) Client has completed and received all authorizations, approvals and appropriations necessary for Client to perform its obligations under this Agreement.

  4. THE WARRANTIES PROVIDED TO CLIENT SHALL BE VOID IN THE EVENT THAT CLIENT OR ANY OTHER THIRD PARTY MODIFIES ALL OR ANY PART OF THE SERVICES OR ANY ELEMENT THEREOF, USES THE SERVICES IN ANY MANNER OTHER THAN AS DESCRIBED IN THE INSTRUCTIONS PROVIDED BY FLATOUT DMS, OR IS OTHERWISE IN MATERIAL BREACH OF ANY OBLIGATION HEREUNDER.

  5. EXCEPT AS SET FORTH IN THIS SECTION FLATOUT DMS DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICES, EXPRESSED OR IMPLIED (WHETHER EXPRESSED, IMPLIED, STATUTORY OR ARISING BY CUSTOM OR TRADE USAGE), INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, DESIGN OR FITNESS FOR A PARTICULAR PURPOSE.  EXCEPT FOR THE WARRANTIES AFTER THIS SECTION, FLATOUT DMS DISCLAIMS AND CLIENT WAIVES ANY AND ALL WARRANTIES WHICH MIGHT HAVE ARISEN OR MIGHT LATER ARISE FROM COURSE OF PERFORMANCE OR DEALING OR USAGE OF THE TRADE AND RELEASES FLATOUT DMS FROM ALL LIABILITY FOR LOSS OR DAMAGE SUSTAINED RELATING THERETO. NO ORAL INFORMATION OR ADVICE GIVEN BY FLATOUT DMS IN PERFORMING ITS OBLIGATIONS HEREUNDER WILL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES MADE BY FLATOUT DMS.

  6. THE WARRANTIES, OBLIGATIONS, AND LIABILITIES OF FLATOUT DMS AND THE RIGHTS, CLAIMS, AND REMEDIES OF CLIENT SPECIFICALLY SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE. CLIENT HEREBY RELEASES FLATOUT DMS FROM ALL OTHER WARRANTIES, OBLIGATIONS, AND LIABILITIES, THAN OTHERWISE MENTIONED IN THIS AGREEMENT AND HEREBY WAIVES ALL OTHER RIGHTS, CLAIMS, AND REMEDIES AGAINST FLATOUT DMS, ITS OWNERS, DIRECTORS, OFFICERS, OR EMPLOYEES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY SERVICES PROVIDED UNDER THIS AGREEMENT.

 

10)Default; Remedies

  1. The parties agree that any breach of Sections 5, 6 or 8 hereof would irreparably injure FlatOut DMS, which could not adequately be compensated by monetary damages.  Accordingly, Client agrees that FlatOut DMS may, without posting bond, seek and obtain injunctive relief from the breach or threatened breach of such provisions, in addition to and not in limitation of any other legal remedies.

  2. FlatOut DMS’s sole liability and Client's sole and exclusive remedies under the limited warranty provided above are as follows:  If notified by Client in writing of a problem upon delivery of the Services, FlatOut DMS will perform or replace each item of the Services in order to make the item operate as warranted. 

  3. Neither party shall be liable for events that constitute force majeure, including, but not limited to war, riots, insurrection, general strike, fire, natural disasters, exchange controls, embargoes, failure of telecommunications, power failure, delivery problems from suppliers, serious computer virus and force majeure affecting suppliers. In the event of force majeure, the affected party shall inform the other party of its occurrence without undue delay, and both parties may require a renegotiation of timetables.  If force majeure event continues for more than sixty (60) days, both parties shall be entitled to terminate Agreement.

  4. No action, regardless of form, relating to or arising out of the Services under this Agreement may be brought by either party more than one (1) year after the date of completion of the Services, except that an action by FlatOut DMS for non-payment may be brought at any time consistent with applicable law.

  5. FLATOUT DMS SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM INTERRUPTION OF BUSINESS OR LOSS OF ANTICIPATED PROFITS, REVENUES, DATA OR BENEFITS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM (E.G., CONTRACT, TORT, WARRANTY OR OTHERWISE) OF ANY LEGAL OR EQUITABLE ACTION BROUGHT AGAINST FLATOUT DMS. 

  6. FLATOUT DMS’S TOTAL LIABILITY TO CLIENT UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, WILL BE LIMITED TO THE PAYMENTS ACTUALLY RECEIVED FROM CLIENT HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE A CLAIM FOR LIABILITY ARISES HEREUNDER.

 

11)General

  1. This Agreement, including the Attachments hereto, which are incorporated herein by this reference as though fully set forth herein, constitutes the complete and exclusive statement of the agreement between the parties with respect to the subject matter contained herein and supersedes all prior representations, proposals, understandings and all other agreements, oral or written, express or implied, between the parties with respect to the subject matter hereof. In the event of any conflict between this Agreement and any Attachments, this Agreement shall control.  The parties expressly exclude the application of the 1980 United Nations Convention on Contracts for the International Sale of Goods.  This Agreement may be modified only by an amendment executed in writing and signed by a duly authorized representative for each party. 

  2. All notices and requests in connection with this Agreement will be given or made upon the respective parties in writing at the contact information set forth on the first page hereof. If faxed, the notice will be deemed given as of the business day following the day the notice is faxed, provided a hard copy acknowledgment of successful faxed notice transmission is retained.  Notice may also be given by mail, postage pre-paid, certified or registered with return receipt requested, e-mail or personal delivery.  If e-mailed or delivered, notice will be deemed to be given on the business day following the day it is sent by the sender. If mailed notice will be deemed to be given three (3) business days after the day it is sent by the sender.

  3. The failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

  4. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such determination will not affect the validity or enforceability of the other provisions of this Agreement, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.

  5. The Client consents to FlatOut DMS conducting a credit investigation of the Client and to FlatOut DMS making enquiries with financial institutions or others having business relations with the Client and the Client authorizes and directs such persons to answer FlatOut DMS’s enquiries. 

  6. Dates or times by which either party is required to perform under this Agreement, excepting the payment of any amount due hereunder, will be postponed automatically to the extent that any party is prevented from meeting them by causes beyond its reasonable control.

  7. The parties hereto are independent of each other, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.  Neither party shall have the power to obligate or bind the other party.

  8. The parties acknowledge that this Agreement and all the terms and conditions contained herein have been fully reviewed and negotiated by the parties.  Having acknowledged the foregoing, the parties agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity, shall have no application to the terms and conditions of this Agreement.

  9. Client consents to the exclusive jurisdiction of and venue in the state and federal courts for Waupaca Wisconsin, in connection with any suit or action relating to this Agreement, and agrees that the validity and interpretation of this Agreement shall be governed by the laws of the State of Wisconsin, without regard to its principles of conflicts of law.

  10. Any controversy or claim arising out of, relating to or based on this Agreement, or the breach or claimed breach thereof, shall be settled solely by arbitration  before a single arbitrator acceptable to both parties, sitting in Waupaca County in the state of Wisconsin, by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitrator will not award damages that are inconsistent with this Agreement, and any such award shall not include punitive, consequential or exemplary damages. Any award of the arbitrator will be final and binding upon the Client and FlatOut DMS, and both parties will comply with said award without delay.  The award may be enforced by any court having jurisdiction over the party against which the award has been rendered.  Neither party will resort to any court except to compel arbitration, enforce a rendered award, or to seek injunctive relief in accordance with Section 10(a) above.

  11. FlatOut DMS shall be entitled to recover its costs of enforcing Client’s payment obligations hereunder, including without limitation reasonable attorneys’ fees incurred at all levels and proceedings including settlement and appeal, in addition to other relief to which FlatOut DMS may be entitled.

  12. Client’s continued success is important to FlatOut DMS, which is committed to fostering a lasting partnership with Client.  Thus, FlatOut DMS wishes Client to be fully referenceable.  With Client’s prior written consent and approval, FlatOut DMS may use Client’s name in describing, advertising, or promoting FlatOut DMS’s services as a part of FlatOut DMS’s World Wide Web site, marketing material, or other documents listing FlatOut DMS’s qualifications, experience and companies with whom FlatOut DMS has provided consulting services.  Client also acknowledges its willingness to participate in case studies and public relations material, and FlatOut DMS recognizes that Client shall receive and approve the final version of such documents prior to release.

  13. FlatOut DMS may assign this Agreement and any rights or obligations hereunder, whether by operation of contract, law or otherwise, including to any FlatOut DMS parent, subsidiary or affiliated entity. Client may not assign this Agreement or any rights or obligations hereunder whether by operation of contract, law or otherwise except with written consent of FlatOut DMS, which shall not be unreasonably withheld.

  14. This Agreement shall bind the Client’s successors and assigns and shall inure to the benefit of FlatOut DMS’s successors and assigns.

  15. The provisions of Sections 5, 6 (to the extent relating to ownership rights), 8, 9 (to the extent relating to disclaimers), 10, and 11 shall survive termination or expiration of this Agreement for any reason.

Headings and captions contained in this Agreement are for convenience of reference only and shall not be considered in the interpretation or construction thereof.

Contact Info:

 

1062 Oak Forest Dr

Suite 300

Onalaska, WI 54650

 

T: 844.920.7700