Professional Services Terms & Conditions

These Terms and Conditions and the Services Description defined below (collectively this “Agreement”) shall govern the professional services relationship between Blue Mantis, a Delaware corporation with offices located at 2 International Drive, Suite 260, Portsmouth, NH 03801 and the party noted in the Services Description (hereafter “Client”).

I.        General Terms

1. THIS AGREEMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING THE PARTIES’ RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY. PLEASE READ IT CAREFULLY. THESE TERMS REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY
2. BY EXECUTING A CONTRACT FOR SERVICES FROM BLUE MANTIS, CLIENT AFFIRMS THAT IT ACCEPTS AND IS BOUND BY THIS
3. This Agreement governs the technology services (“Services”), temporary personnel, and/or consultants (collectively “Personnel”) to be provided by Blue Mantis to Client, on a needs or case-by-case basis. The Services to be provided shall be more fully described on a Statement of Work; or Blue Mantis Services Offering (“Services Description”) which is incorporated herein by reference. Any pre-conditions or assumptions regarding the performance of the Services shall be specified in the Services Description.
4. The terms and conditions set forth in this Agreement are the only terms that govern the provision of Service by Blue Mantis to Client and prevail over any of Client’s general terms and conditions regardless of whether or when Client has submitted a request for proposal, order, or such other terms. Provision of Services to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend this Agreement.
5. Client agrees to provide reasonable and safe working conditions, reasonable access to Client’s premises and/or computer systems, and any other resources Blue Mantis’s Personnel may reasonably require in order to perform the Services. Client shall also carry out the Client responsibilities set forth in the Services Description.

II.        Confidentiality & Proprietary Rights

1. Blue Mantis and its Personnel shall maintain in confidence and not disclose to any third party, without Client’s prior written consent, any trade secrets or confidential information, knowledge or data relating to Client’s products, processes, or business Client agrees to maintain in confidence and not to disclose to any third party any data, information, technology, materials or trade secrets developed or shared by Blue Mantis during the term of this Agreement, including the terms of this Agreement. The covenants contained in this paragraph shall survive the termination or expiration of this Agreement.

III.        Payments

1. All fees, rates and other expenses to be paid by Client to Blue Mantis for the performance of the Services and/or provision of Personnel shall be set forth on in the Services Blue Mantis shall submit invoices to Client for all such fees, rates and expenses in accordance with the schedule set out in the applicable Services Description. Each invoice shall reference this Agreement and the applicable Services Description. Unless otherwise noted in the Services Description, payments due shall be made by Client within twenty-one (21) days from the date of each invoice.
2. For purposes of determining whether Personnel is exempt or non-exempt with regard to entitlement to overtime pay, Blue Mantis may rely on Client’s representations regarding the nature of work and hours of services provided by Personnel under this For whatever reason, if it is determined by any authority that Personnel was entitled to be paid overtime pay and such overtime pay was not made, then Client shall immediately pay to Blue Mantis the amount of overtime pay owing, plus any interest accrued, costs and fees awarded to Personnel. Thereafter, Blue Mantis shall immediately disburse such funds awarded to Personnel.
3. In addition to the foregoing, Client shall pay Blue Mantis’s actual out-of-pocket expenses, such as estimates that are pre-approved by Client, as set forth in the Services Description. Blue Mantis agrees to provide Client with access to the receipts, and other records as may be reasonably necessary for Client to verify the amount and nature of such Client shall also pay Blue Mantis for out-of-pocket expenses that reasonably exceed estimated amounts.

IV.        Rates/Services

1. Client shall pay Blue Mantis for those Services and Personnel charges in the amounts and on the schedule provided for in the applicable the Services
2. Unless stated otherwise in a Services Description, Client shall be fully responsible for supervising Personnel placed at Client’s site during the course of the performance of the Services.
3. If Blue Mantis provides Client with an estimate of the cost or timeframe for any Services to be provided by Blue Mantis, and the estimate is noted as such in writing, the estimate will be made in good faith based on the information known to Blue Mantis at the time the estimate is provided but shall not be a binding, final quote. Client agrees to pay all fees and costs incurred for performance of the Services and placement of the Personnel, in accordance with the Services Description, even if such sums exceed the estimate.

V.        Warranties, Liabilities and Indemnifications

Subject to the conditions and limitation on liability stated herein, Blue Mantis shall perform the Services and all other work under this Agreement in a good and workmanlike manner. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS IS AN AGREEMENT FOR SERVICES ONLY. EXCEPT FOR THE WARRANTY SET FORTH IN THE FIRST SENTENCE OF THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. TO THE EXTENT THAT GOODS OR PRODUCTS ARE ALSO PROVIDED TO CLIENT UNDER THIS AGREEMENT, BLUE MANTIS HEREBY DISCLAIMS, AND CLIENT HEREBY WAIVES, ANY AND ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FURTHER, BLUE MANTIS DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS THAT ANY SOFTWARE DEVELOPED THROUGH THE PERFORMANCE OF THE SERVICES WILL BE FREE FROM BUGS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR-FREE OR MAKE ANY OTHER REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF SUCH SOFTWARE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. Client understands that and agrees that BLUE MANTIS is not responsible for and will have no liability for hardware, software, or other items or any services provided by or manufactured by any persons other than BLUE MANTIS.

CLIENT UNDERSTANDS AND AGREES THAT BLUE MANTIS’S LIABILITY FOR ANY DAMAGES SUFFERED BY CLIENT UNDER ANY THEORY OR BASIS SHALL BE LIMITED TO THE AMOUNT SPECIFICALLY PROVIDED FOR IN AN APPLICABLE STATEMENT OF WORK COVERING THE SPECIFIC SERVICES, PERSONNEL AND/OR DELIVERABLES WHICH GIVE RISE TO SUCH DAMAGES OR $1,000.00 IN THE EVENT THERE IS NO OPEN STATEMENT OF WORK. IN NO EVENT SHALL BLUE MANTIS BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR SIMILAR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY STATEMENTS OF WORK OR CHANGE ORDER AND/OR THE SERVICES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STORAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA OR INTERRUPTION OF DATA PROCESSING OR INFORMATION SYSTEMS, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES EVEN IF BLUE MANTIS HAS BEEN ADVISED OF, OR OTHERWISE SHOULD HAVE BEEN AWARE OF, THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL THEORY OF BASIS FOR SUCH CLAIM.

The parties agree to indemnify and defend one another and hold any of the other party’s affiliate companies, officers, directors, agents and employees, free and harmless from and against all claims, costs, liabilities, judgments, damages, settlements and expenses (including reasonable attorneys’ fees and costs) arising out of or related to a third party’s claim based upon the indemnifying party’s:

• breach of any of its specific representations made in this Agreement;
• failure to comply in any material respect with any applicable law, statute, ordinance, administrative order, rule or regulation, unless the claim arises out of or is a result of its breach of this Agreement;
• claimed infringement or violation of any S. copyright, patent, trademark or other intellectual property right of any third party; or
• failure to maintain the confidentiality of the other party’s Confidential Information as is required pursuant to this Agreement.

The indemnifying party shall have the option, at its expense, to employ counsel of its choosing to defend against any claim covered by this Section and to compromise, settle or otherwise dispose of the claim; provided, however, that no compromise or settlement of any claim admitting liability of or imposing any obligations upon the indemnified party may be affected without the prior written consent of the indemnified party. The indemnified party shall have the option to be represented by counsel at its own expense. The indemnified party shall cooperate with the indemnifying party in such actions, making available employees, books and records and other materials and information reasonably necessary for the defense of such claim. If the indemnifying party does not make known to the indemnified party its willingness to defend against such claim within thirty (30) days after it receives notice thereof, then the indemnified party shall be free to investigate, defend, compromise, settle or otherwise dispose of such claim in its best interest and incur other costs in connection therewith, all at the expense of the indemnifying party.

In the event that Blue Mantis performs any custom application development for Client, Blue Mantis shall have no obligation under this Section with respect to any claim of infringement of a third party’s intellectual property rights if such claim is based on i) deliverables created by Blue Mantis pursuant to instructions and/or specifications provided by Client, or ii) the combination of products, deliverables and/or Services provided by Blue Mantis or its agents with other products, processes or services provided by a third party to the extent that any such infringement would not have occurred without such instructions and/or specifications or combination of third party products, processes and/or services with the Blue Mantis Services, products and/or deliverables. Neither party shall bring any action, whether in contract or tort, including negligence, arising out of or in connection with this Agreement, more than three (3) years after the cause of action has accrued.

VI.        Term and Termination

1. This Agreement shall be effective as of the execution date of the Statement of Work or Services Offering and thereafter shall remain in effect for one year from that date or from the completion of any associated Services.
2. Except as otherwise specified in a Services Description, the termination of this Agreement by either party shall only be upon thirty (30) days prior written
3. In the event of any termination hereunder, Client agrees to pay Blue Mantis for actual Services performed and Personnel time incurred up to the date of
4. Except as otherwise explicitly set forth in this Agreement, Sections II, V, VI, VII and XV and any provision necessary to effectuate those surviving provisions shall survive the termination or expiration of this Agreement or any then applicable Services Description.

VII.        Relationship of the Parties

Blue Mantis and Client agree that Blue Mantis and any person or entity employed or contracted by Blue Mantis to perform the Services shall be considered an independent contractor engaged in support of Client but not as an employee or agent of Client. Client acknowledges that Blue Mantis is an independent contractor. Blue Mantis and Client acknowledge and agree that they are not joint venture partners in any sense and do not have the right or authority to in any way bind one another except as may be explicitly set forth in this Agreement.

VIII.        Amendment or Alteration

No provision of this Agreement shall be amended, supplemented or waived unless such amendment, supplement or waiver is set forth fully in writing and signed by authorized representatives of both parties.

IX.        Governing Law

This Agreement shall be governed by, and construed in accordance with, the laws of the State of New Hampshire. In the event either party employs legal counsel to enforce any right or remedy arising out of or relating to this Agreement, the prevailing party in such enforcement action shall be entitled to recover its reasonable attorneys’ fees and costs.

X.        Severability and Survivability

If any provision of this Agreement is determined to be illegal, invalid, or unenforceable by a court of competent jurisdiction, such determination shall not affect any other provision of this Agreement, all of which shall remain in full force and effect.

XI.        Notice

Any notice required or permitted under this Agreement shall be in writing except where otherwise expressly stated in this Agreement and shall be effective when delivered in person or sent by registered or certified United States mail, return receipt requested, proper postage prepaid, and properly addressed to the addressee set forth hereunder or such more recent address of the addressee of which the sending party has received written notice:

To:

Blue Mantis
Attn: Client Services
2 International Drive, Suite 260
Portsmouth, NH 03801

With copy to: Jason Bernstein at the above address

Notice to Client shall be sent to the mailing or email address provided in the most recent Services Description.

XII.        Assignment

This Agreement may not be assigned, except with the prior written approval by authorized representatives of both parties. Notwithstanding the foregoing, in the event either party transfers its interest to a successor through the sale of the company, the sale of substantially all of its assets or establishment of a subsidiary, then the mutual obligations of this Agreement shall survive and shall be binding upon and inure to the benefit of the parties’ respective successors and permitted assigns.

XIII.        Waiver

The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion or occasions shall not be considered a waiver thereof nor shall such failure deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.

XIV.        Arbitration

In the event of a dispute arising under or related to this Agreement where the parties are unable to reach a mutually agreeable resolution, the dispute shall be submitted to binding arbitration under the commercial arbitration rules of the American Arbitration Association then in effect; provided, however, that the parties shall be entitled to avail themselves of injunctive and other equitable powers of a court of appropriate jurisdiction located in Concord, New Hampshire. Arbitrations shall take place in a mutually agreeable location, or if no location is agreed to by the parties, in Concord, New Hampshire. There shall be one arbitrator mutually agreed to by both parties (or in the event the parties are unable to agree on a single arbitrator, each party shall pick an arbitrator and the chosen arbitrators shall chose a third arbitrator). The arbitrator(s) shall have experience in the area of information technology and related matters. After the hearing, the arbitrator(s) shall decide the controversy and render a written decision setting forth the issues adjudicated, the resolution thereof and the reasons for the award. The award of the arbitrator(s) shall be conclusive. Payment of the expenses of arbitration, including the fee of the arbitrator(s) and reasonable attorneys’ fees and costs, shall be assessed by the arbitrator(s) based on the extent to which each party prevails.

XV.        Miscellaneous

1. This Agreement contains the entire agreement of the parties and shall supersede any and all existing or previous discussions, negotiations, representations or understandings between Blue Mantis and Client relating to the subject matter described herein.
2. Blue Mantis and Client each acknowledge that in considering their entry into this Agreement neither has relied on any warranties, representations, or promises except as specifically set forth herein.
3. This Agreement shall be binding upon and inure to the benefit of the parties’ respective successors and permitted assigns.
4. Neither party shall be responsible or considered in breach of this Agreement for any delay or failure in the performance of any obligation of this Agreement to the extent that such failure or delay is caused by acts of God, fires, explosions, labor disputes, accidents, civil disturbances, material shortages, quarantine or other government restrictions or other similar causes beyond its reasonable control, even if such delay or failure is foreseeable. Provided, however, that the non- performing party provides notice of such cause preventing or delaying performance and resumes its performance as soon as practicable and provided further that the other party may terminate the Agreement upon written notice if such non-performance continues for a period of ninety (90) days.