Published: September 29, 2023
Please read these Professional Services Terms (these “Terms”) carefully. These Terms, the policies referenced herein, and all Statements of Work (as defined below) issued in hereunder (collectively, the “Agreement”) is between Gray Quarter Inc. (“Gray Quarter”) and the entity identified in a Statement of Work (“Client”). The Agreement is effective as of the effective date listed in the first Statement of Work and governs Client’s use of Gray Quarter’s services as described in the applicable Statement of Work (“Services”).
CHANGES TO TERMS. Gray Quarter may make modifications, deletions, and additions to these Terms or any policy referenced in these Terms (“Changes”) from time to time. Changes will be posted here or at the applicable policy site. Client should regularly check for the most recent version of these Terms and its policies and save the most up-to-date version of these Terms and its policies in Client’s files. When Changes are made, Gray Quarter will indicate the effective date of such changes at the top of these Terms or the applicable policy site. If Client continues to use the Services after the effective date of any Changes, then Client agrees to the revised terms and conditions. It is Client’s responsibility to regularly review these Terms.
No terms contained in any purchase order or ordering document or other written communication from Client or its agent will in any way modify the Agreement, any such terms being expressly disclaimed by Gray Quarter.
1. Professional Services.
- Scope of Services. Subject to the Agreement, Gray Quarter is hereby retained by Client to provide the professional services (“Services”) specified in one or more statements of work (each a “Statement of Work”). To be valid, a Statement of Work must be signed by all parties. Client may, but is not obligated to, engage Gray Quarter to perform additional services upon applicable terms and conditions for such additional services.
- Performance Standard and Warranty. Gray Quarter will cooperate with Client and Client’s staff in the performance of the Services. Gray Quarter warrants and represents that the Services will be performed in a professional and timely manner. Client must report any deficiencies in the Services to Gray Quarter in writing within twenty (20) days after such Services are performed to receive the warranty remedy. Client’s sole and exclusive remedy and Gray Quarter’s entire liability for breach of this warranty will be re-performance of the deficient Services. If, for any reason, Gray Quarter is unable or fails to correct such deficiencies, Client may terminate its agreement with Gray Quarter as provided in Section 4.2. Gray Quarter will bear no liability or otherwise be responsible for delays in the provision of Services, or any portions thereof, occasioned by Client’s failure to timely complete a task or adhere to its own schedule.
- Nature of Services. Client will retain perpetual, transferable, royalty free rights to all documents and written materials specific to Client (“Written Work”) that are produced by Gray Quarter in connection with the Services. For the avoidance of doubt, (i) Written Work is not work made for hire (as defined in Section 101 of the U.S. Copyright Act, Title 17 of the U.S. Code) and nothing in the foregoing grants to Client any rights in or to Gray Quarter’s know how related to Written Work; and (ii) Client does not under acquire any rights in or to any software, documentation, tools, techniques, methodologies, or other materials (including derivatives of any of the foregoing, collectively “Proprietary Materials”) which has not been created as part of the Services and which is proprietary to Gray Quarter. Proprietary Materials (including all Intellectual Property Rights therein) will be and remain the sole and exclusive property of Gray Quarter. As used herein, “Intellectual Property Rights” means patent rights, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and trade secret rights, and all other intellectual property rights, derivatives thereof as well as other forms of protection of a similar nature.
- Client Obligations. Client agrees to provide Gray Quarter with all information, materials, rights of access and licensed as required for Gray Quarter to perform Services hereunder (collectively, “Client Materials”) as well as access to Client’s key stakeholders who are empowered to make decisions concerning the Services and future development work. Client acknowledges that Gray Quarter’s performance of the Services is contingent upon: (a) timely delivery of Client Materials; and (b) availability of Client’s key stakeholders. Client agrees that any reasonable scheduling or financial impact caused by Client’s failure to deliver Client Materials on time or make key stakeholders available to Gray Quarter will be treated as a Change Request and subject to Section 1.5.
- Change Requests. Client agrees to provide Gray Quarter with timely updates of any changes in requirements, delivery schedule or other project-related information that may impact Gray Quarter’s delivery of Services. Client or Gray Quarter may request to modify a material provision of a Statement of Work by submitting a detailed request to the other party (each a “Change Request”). Upon receipt of Client’s Change Request or at the time of issuance in the case of a Gray Quarter submitted Change Request, Gray Quarter will estimate the financial and schedule impact, if any. Gray Quarter and Client will each review these estimates to determine whether the Change Request and its impact are mutually acceptable. If the Change Request is agreed upon, Gray Quarter will attach the final Change Request to the applicable Statement of Work.
2. Compensation and Payment.
- Fees and Expenses. For the Services provided by Gray Quarter hereunder, Gray Quarter will be compensated in accordance with the schedule and at the rates listed in the applicable Statement of Work. Compensation will include reimbursement for any reasonable and necessary travel, living, and out-of-pocket expenses incurred by Gray Quarter in providing the Services, when travel is required to provide the Services. Gray Quarter will obtain Client’s prior written approval for billable travel prior to incurring any expense for such travel.
- Payment. Unless otherwise agreed by Gray Quarter in writing, Gray Quarter will invoice Client monthly. Client’s payment terms will be in U.S. Dollars and paid in full within thirty (30) days after the invoice date.
- Overdue Invoices. In addition to any other remedy available to Gray Quarter for late payments, Client will be obligated to pay Gray Quarter interest for fees and charges not paid within forty five (45) days after the invoice date at the compounded rate of one percent (1%) per month or the maximum allowed by law, whichever is less for each month (or partial month), calculated from the date such payment was due until the date paid. If Client elects to discontinue the Services and does not pay the outstanding fees and charges in full within ninety (90) days of such election, Client will continue to be charged interest until the balance is paid in full. Client will be responsible for any costs, including attorney’s fees, incurred by Gray Quarter in collecting any past due amounts.
- Disputed Charges. Client may not withhold payment of any invoice based on any dispute other than based on clear error on the face of the invoice, such as a calculation error. Payment by Client will not preclude Client from questioning any charges that Client believes are improper or incorrect, within twenty (20) days after the invoice date. If Client disputes any charge on a given invoice, Client will pay all non-disputed charges and document the disputed charges in writing to Gray Quarter. Client will notify Gray Quarter in writing, no later than twenty (2) days after the invoice date, of any questions or issues relating to items billed on an invoice or all fees and charges will stand.
- Taxes. Client agrees to be responsible for paying all direct or indirect federal, state, municipal or other governmental excise, sales, or similar taxes, that now or in the future may be imposed on Client, together with any penalties, interest or any additions thereto associated with the Services hereunder or arising because of or in connection with transactions related to the Agreement, other than taxes related to Gray Quarter’s net income or property.
3. Term and Termination.
- Term. The Agreement will begin on the Effective Date and will remain in full force and effect until the expiration of the term of all Services as stated in all Statement(s) of Work, unless earlier terminated as provided in these Terms.
- Termination. Client may terminate the Agreement upon material breach by Gray Quarter of one or more of the terms and conditions of hereof, provided that Gray Quarter is notified in writing of the material breach and such breach is not cured within thirty (30) days after receipt of such written notice. Client’s termination of will not relieve Client of its obligations to pay for any Services performed. Gray Quarter may terminate the Agreement if Client fails to promptly pay any fees or charges when due or upon a breach by Client of one or more of the terms and conditions of the Agreement, provided that Client is notified in writing of the failure or beach and such failure or breach is not cured or a satisfactory resolution agreed upon in writing by the Gray Quarter within thirty (30) days after receipt of such written notice.
- Confidential Information. Under the Agreement, “Confidential Information” refers to any and all information of Gray Quarter or Client (as applicable, “DisclosingParty”) that has been disclosed to the other Party (“ReceivingParty”), which is designated in writing as confidential, proprietary, or secret or under the context of its disclosure ought to reasonably be considered as confidential. Confidential Information includes, but is not limited to, all information concerning a Party’s existing business, business systems, business plans and information systems, trade secrets, prices, and pricing information.
- Use of Confidential Information. Quarter and Client will each comply with all laws and regulations that apply to use, transmission, storage, disclosure, or destruction of Confidential Information. Gray Quarter and Client each agree to hold the other’s Confidential Information in strict confidence. Client agrees not to use Gray Quarter’s Confidential Information in any way, except as expressly permitted by or required to achieve the purposes of the Services, and Gray Quarter agrees to use Client’s Confidential Information solely for the purpose of performing the Services. Gray Quarter and Client agree to use all reasonable efforts to protect unauthorized use or distribution of Confidential Information and the Receiving Party agrees to use at least the same degree of care to prevent disclosing to third parties the Confidential Information of the Disclosing Party as the Disclosing Party uses to protect its own Confidential Information. The Receiving Party further agrees not to disclose or permit any third party access to the Disclosing Party’s Confidential Information, except such disclosure or access will be permitted to perform the Services. Each Party agrees to ensure that its employees, agents, representatives, and contractors are advised of the confidential nature of the Confidential Information and are precluded from taking any action prohibited under the Agreement.
- Limitation of Use. Confidential Information will not include information of the Disclosing Party which: (i) is publicly available as of the Effective Date or becomes publicly available thereafter through no fault of the Receiving Party; (ii) the Receiving Party rightfully possessed before it received such information from the Disclosing Party; (iii) is subsequently furnished to the Receiving Party by a third party without restrictions on disclosure; or (iv) is required to be disclosed by law, provided that the Receiving Party will promptly notify the Disclosing Party and cooperate, at the Disclosing Party’s expense, to permit the Disclosing Party to seek appropriate protective orders from the issuing court of government authority limiting disclosure or use of the Confidential Information.
- Ownership of Confidential Information. Except as explicitly stated in these Terms, Receiving Party is granted no license or conveyance of Disclosing Party’s Confidential Information or any Intellectual Property Rights therein. Title to the Disclosing Party’s Confidential Information will remain solely with the Disclosing Party.
- Destruction of Confidential Information. Upon the expiration or termination of the Agreement, each Party will, upon request of the other Party, destroy all Confidential Information of the other Party. The Receiving Party will certify such destruction to the Disclosing Party within thirty (30) days following request for such certification.
- Remedies. Gray Quarter and Client agree that any unauthorized use or disclosure by the Receiving Party of the Disclosing Party’s Confidential Information in a manner inconsistent with the Agreement may cause the Disclosing Party irreparable damage for which remedies other than injunctive relief may be inadequate. Accordingly, if the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party will have the right, in addition to any other remedies available, to seek injunctive relief to enjoin such acts.
5. Limitations of Liability; Damages Waiver.
- Limitation of Liability. Gray Quarter agrees to take all necessary precautions to prevent injury to any persons or damage to any property during the term of the Agreement. Client agrees the liability of Gray Quarter, if any, on any claim for damages arising out of the Agreement will be limited to direct damages and will not exceed the amount which has been paid to Gray Quarter by Client under the applicable Statement of Work for the twelve (12) month period preceding the date on which the claim is based.
- Damages Waiver. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, GRAY QUARTER WILL NOT BE LIABLE TO CLIENT FOR CONSEQUENTIAL DAMAGES AND GRAY QUARTER WILL HAVE NO LIABILITY WHATSOEVER RESULTING FROM ANY LEGAL CLAIMS AGAINST CLIENT. IN NO EVENT SHALL GRAY QUARTER BE LIABLE TO CLIENT OR ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FOR LOSS OR DAMAGE ARISING OUT OF THE AGREEMENT, LOST PROFITS, OR SIMILAR ECONOMIC LOSS OR FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, DIRECT, INDIRECT OR PUNATIVE DAMAGES, REGARDLESS OF THE FORM OF ACTION INCLUDING BUT NOT LIMITED TO, ACTIONS FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, AND BREACH OF WARRANTY WHETHER IN CONTRACT, TORT OR OTHERWISE, IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF, OR ANY FAILURE OR DELAY IN PROVIDING THE SERVICES, HOWEVER CAUSED, EVEN IF GRAY QUARTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Disclaimer. THE REPRESENTATIONS AND WARRANTIES PROVIDED IN THE AGREEMENT ARE GRAY QUARTER’S COMPLETE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES. TO THE FULLEST EXTENT PERMITTED BY LAW, GRAY QUARTER DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND GUARANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Governing Law, Jurisdiction and Venue. The Agreement and any related actions will be governed by laws of the state of California, without regard to the choice or conflicts of law provisions of any jurisdiction. All disputes, claims, or actions (whether in contract, tort, or other legal theory) arising under, out of, or in any way connected with the Agreement will be subject to the exclusive jurisdiction of the state and federal courts s located in the Northern District of California and Client waives any objection to jurisdiction and venue in such courts. Client consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether based on the doctrine of forum non conveniens or otherwise.
- Independent Contractor. Gray Quarter will determine the method, details, and means of performing the Services. At its own expense, Gray Quarter may use employees or contractors to perform the Services. Gray Quarter and Client understand and intend that Gray Quarter will perform the Services as an independent contractor and not as an employee of Client. Nothing in the Agreement or any Statement of Work will be deemed to create an agency, partnership, or joint venture.
- Assignment. Client may not be assign its rights or obligations under the Agreement without the prior written consent of Gray Quarter; however, the Agreement may be assigned without Gray Quarter’s consent to Client’s (a) parent or subsidiary; (b) acquirer of its assets or equity or (c) successor by merger. Any purported assignment in violation of this section will be void.
- Force Majeure. If Gray Quarter fails to perform its obligations because of strikes, lockouts, labor disputes, embargoes, acts of God, inability to obtain labor or materials or reasonable substitutes for labor or materials, governmental restrictions, governmental regulations, governmental controls, judicial orders, enemy or hostile governmental action, civil commotion, fire or other casualty, or other causes, except financial, beyond Gray Quarter’s reasonable control, then Gray Quarter’s performance will be excused for a period equal to the period of the cause for failure to perform as long as Gray Quarter gives Client notice within thirty (30) calendar days after the event causing the failure.
- Severability. If any provision of the Agreement is declared or found to be prohibited, unenforceable or void, Gray Quarter will either issue a substitute provision that is valid, binding, and enforceable that is as nearly as possible consistent with the intentions underlying the original provision or strike the original provision. If the remainder of the Agreement is not materially affected by such declaration or finding and is capable of substantial performance, then the remainder will be enforced to the extent permitted by law.
- Entire Agreement. The Agreement compromises the entire agreement between Client and Gray Quarter and supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, regarding the subject matter hereof.
- Notice. Gray Quarter may give notice by means of publishing Changes as described above or by sending an electronic mail to Client’s e-mail address on record. It is Client’s responsibility to keep its email address up to date for any notices that Gray Quarter may send to time to time Any notice to be given by Client will be deemed to have been duly given if in writing and delivered personally or mailed by first-class, registered, or certified mail, postage prepaid and addressed to Gray Quarter, Inc., 8575 Morro Rd, Atascadero, CA 93422.
Waiver. No delay or failure by Gray Quarter to exercise any right or power under the Agreement will constitute a waiver of that right. A waiver by Gray Quarter or breach of any of the covenants, conditions, or agreements to be performed by Client will not be construed to be a waiver of any succeeding breach or of any other covenant, condition, or agreement. No change, waiver, or discharge will be valid unless in writing and signed by Gray Quarter.