Professional Services – Terms & Conditions

BuildingPoint Mid-America, LLC (BPMA) may perform mutually agreed upon configuration or customization services, including but not limited to, discovery, documentation of specifications and/or process documents, configurations, data migration, integrations, customization, implementation services, custom reporting, quality assurance and testing, project management and classroom training (“Services”).  Such Services shall be provided to the undersigned customer (“Company”) pursuant to this Terms & Conditions – Professional Consulting Services (together with any Statement of Work, the “Order for Professional Services”).

1)       Invoice schedule & payment:

  1.        BPMA will invoice the Company monthly for fees and expenses in accordance with the terms of the Statement of Work. Invoices will be due 20 days from invoice date. In connection with BPMA extending 20 day terms, it may conduct a credit check on the Company. The Company’s executing this Order for Professional Services represents its consent and authorization for BPMA to conduct a credit check. Subject to the credit check results, BPMA may require an upfront retainer or otherwise require payment at the time services are provided, in its sole discretion.
  2.       Interest on past due invoices will be charged at the lower of eighteen percent (18%) per annum or the maximum rate allowed by law from the date the invoice becomes past due to the date the invoice is paid.
  3.        Any requested additional Time and Material Services will be invoiced with set forth hours charged and applicable rates.
  4.        Expenses invoiced will include reasonable business travel and accommodation expenses charged at cost.
  5.        Support hours in the Order for Professional Services are billed monthly based on time used.
  6. Prices do not include foreign or domestic sales, use, excise or similar taxes. Consequently, in addition to prices specified in this Order for Professional Services, the amount of any present or future sales, use, excise or other general or specific tax, import or export tariffs, duties or penalties or other governmental charges fixed or imposed by any lawful authority(s) upon or applicable to the Services (and any related product sales) shall be added to the price and be paid by the Company, or in lieu thereof, the Company shall provide BPMA with a tax exemption certificate acceptable to the taxing authorities.  If any such tax is paid by BPMA, the Company shall reimburse BPMA upon presentation of invoice.

2)       Services Scheduling:  On-site consulting activities are scheduled between 8:00 a.m. and 5:00 p.m.; however time must be allotted within these business hours for setup before and wrap-up after consulting meetings. BPMA defines its business day as eight (8) hours. Work beyond these hours will be billed upon completion of services on a time and materials basis (“T&M”) at BPMA’s then prevailing services rate with payment due net twenty (20) days from date of invoice.  Company agrees to provide BPMA with timely access to resource information and staff members as necessary and appropriate for BPMA to perform the Services.

  1.        Commencement: Work will only commence upon receipt of a signed Order for Professional Services. BPMA will aim to mobilize required resources at the earliest opportunity; specific dates will be agreed with the Company.
  2.       Change(s): Should significant changes be required either to duration, number or type of personnel required, such change will be evidenced by written Change Order for Professional Services signed by both parties.
  3.        Training Cancelation Policy for onsite work

(i)     If written notice is received at least:

  1.  Fourteen (14) business days in advance of the class, the Company is entitled to a refund of its prepayment. Failure to provide written notice at least fourteen (14) business days in advance of the class obligates the Company to make payment for the full price of the class.
  2.  Seven (7) business days in advance of the class, the Company is entitled to a full class credit that must be used for another class offered by BPMA within three (3) months of the date of the original class

(ii)   Company is not entitled to either a refund or class credit if less than seven (7) business days advance written notice is given.

(iii)   If the Company has reserved in advance a training room at BPMA’s facilities and written notice is not received within (20) business days prior to the start of the class, the Company will be charged the full training room usage fee.

(iv)    BPMA reserves the right to reschedule or cancel the date, time and location of a Training class at any time, including replacing personnel who may be scheduled to deliver the Training. In the event a Training class is cancelled, the Company is entitled to a full refund. BPMA shall not be responsible for any other loss incurred by Company as a result of a cancellation or reschedule.

(v)   If a Training class is cancelled by BPMA due to circumstances beyond its reasonable control (e.g. weather, natural disaster), the Company is entitled to a full class credit which must be used within 3 months of the date of the original class for another class offered by BPMA. If BPMA cancels a Training class for any other reason, the Company is entitled to a full refund. BPMA shall not be responsible for any other loss incurred by Company as a result of a cancellation or reschedule.

3)       Termination:

Either party shall have the right to terminate this Order for Professional Services, upon two weeks written notice, without cause at any time. Upon such termination without cause, Company will be responsible for all outstanding fees owed for work actually performed or deliverables delivered prior to termination and any unpaid expenses incurred by BPMA prior to termination.

In the event of any material breach of, or material misrepresentation relating to, this Order for Professional Services by either party, the other party may immediately terminate this Order for Professional Services by giving written notice thereof and/or pursue any other remedies and rights at law or in equity.

  1.        The Company will be responsible for payment for all Fees and Expenses due through the termination date.
  2.       The Company will be responsible for payment of “Unavoidable Costs”.
  3.        Unavoidable Costs will include charges for two weeks of work scheduled from the date of receipt of the cancellation notice plus the cost of any non-refundable expenses already booked.
  4.       BPMA will send a Cancellation Change Order detailing estimated un-invoiced amounts which will be due.
  5.        BPMA will invoice final fees and expenses due. The invoice will be due and payable 20 days from invoice date.

4)      Title:  BPMA shall have, retain and own all right title and interest in the customized software, including without limitation, all intellectual property rights, in and to the work product (“Work Product”) resulting from the Services.  In the event Company acquires any rights, title or interest in or to the Work Product resulting from the Services, Company agrees to assign all such right, title or interest to BPMA.

5)       Independent Contractor: The relationship of BPMA and the Company established by this Order for Professional Services is that of independent contractor, and nothing contained in this Order for Professional Services shall  be construed to: (i) give either party the power to direct and control the day-to-day activities of the other, (ii) constitute the parties as partners, joint venture’s, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. BPMA reserves the right to subcontract all or portions of the Services.

6)       Confidentiality: Except to the extent authorized by the Company or required by law, rule or regulation or any decision or order of any court, arbitrator or regulatory authority, BPMA will refrain from disclosing to any person (other than to any employee, officer, contractor or agent of BPMA who  needs to know  the information in connection with the Services) any confidential information which  has not become public about the Company and has been received by BPMA in connection with the Services.

Except to the extent authorized by BPMA or required by law, rule or regulation or any decision or order of any court, arbitrator or regulatory authority, the Company will refrain from disclosing to any person (other than to any employee, officer, contractor or agent of the Company who needs to know the information in connection with the Services) any BPMA confidential information or proprietary information which is received by the Company in connection with the Services.

Except as required by law, neither party will disclose any terms of this Order for Professional Services to anyone other than its attorneys, accountants or other professional advisors. The disclosing party will provide the other party reasonable prior notice of such disclosure, and use its best efforts to protect and limit the disclosure of such information to the extent possible. Notwithstanding the foregoing, Company agrees that BPMA may acknowledge Company as a BPMA customer.

7)       Limited Warranty: BPMA represents and warrants that the Services provided hereunder shall be provided in a professional and workmanlike manner, consistent with industry standards; provided, however, that the Company’s sole and exclusive remedy and BPMA’s sole and exclusive obligation for a breach of the foregoing warranty shall be for BPMA to re-perform the Services in accordance with the foregoing warranty.

THE FOREGOING STATES BPMA’S ENTIRE LIABILITY, AND COMPANY’S EXCLUSIVE REMEDIES, RELATING TO THE SERVICES.  EXCEPT AS OTHERWISE EXPRESSLY PROVIDED ABOVE, THE SERVICES ARE PROVIDED “AS-IS” AND WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND BY BPMA, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.

8)       Limitation of Liability: To the extent not prohibited by applicable law, in no event will BPMA or its suppliers or employees have any liability for any loss of use or goodwill, interruption of business, loss or inaccuracy of business information, lost profits, cost of procurement of substitute goods or services, or any indirect, special, incidental, exemplary or consequential damages of any kind in an amount that exceeds the amount paid by the Company to BPMA under this Order for Professional Services in which  the damage occurred, regardless of the number of claims or the form of action whether in contract, tort (including negligence), strict product liability, or otherwise, even if it or its suppliers have been advised of the possibility of such damages. The parties acknowledge and agree that this section is an essential element of the Order for Professional Services and that in its absence, the economic terms of this Order for Professional Services would be substantially different.

9)       Non Solicitation: During the term of this Order for Professional Services and for one (1) year after its termination, each party agrees not to directly or indirectly solicit, approach, recruit, hire, encourage or appeal to any officer or employee to leave the employ of the other. Indirect solicitation includes, but is not limited to, acting through a third party or parties, or discussing or characterizing job advertisements or job opportunities in such a fashion so as to entice any such person to leave his or her employ. Each party further agrees that, in the event either party breaches this provision, it would be impracticable or extremely difficult to fix the actual amount of damages sustained as a result of that breach or prove that such a breach occurred. Accordingly, the parties agree that in the event of a breach of this Section or the hiring of an officer or employee of the other, the breaching party shall compensate the other through the payment of liquidated damages equal to the annual salary of the solicited or hired officer or employee at the time the solicitation or hiring occurred.

10)     Governing Law; Arbitration: This Order for Professional Services is made in and shall be governed by the laws of the State of Missouri, without regard to its choice of law principles. Any disputes arising from this Order for Professional Services shall be exclusively and finally settled by the Rules of the American Arbitration Association. The final award shall fix the costs of the arbitration and decide which of the parties shall bear them and in what proportion they shall be borne by the parties.

11)    Waivers, Amendments, and Execution: No failure to exercise, and no delay in exercising any right under this Order for Professional Services will operate as a waiver thereof, nor will any single or partial exercise of any right hereunder preclude further exercise of any right hereunder. If any provision of this Order for Professional Services is found by a court of competent jurisdiction to be unenforceable or invalid, that provision shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions shall remain in full force and effect. This Order for Professional Services may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.

12)    Force Majeure: Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Order for Professional Services if such delay is caused by a labor dispute, market shortage of materials, fire, earthquake, flood or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to resume performance as soon as reasonably practicable.

13)       Entire Agreement:  This Order for Professional Services and the documents referred to herein contain the complete agreement between the parties hereto and supersede any prior understanding, agreements or representations by or between the parties, written or oral, which may have related to the subject matter hereof in any way.  The execution of this agreement has not been induced by any representation, stipulation, warranty, agreement or understanding (including any course of prior dealings between the parties hereto) of any kind.

14)       Survival: Any terms of this Order for Professional Services which, by their nature, extend beyond the termination date of this Order for Professional Services shall remain in effect and thus bind the parties.

15)       Attorneys’ Fees; Indemnification:  If suit or other proceedings shall be brought against the Company for recovery of the purchase price or any unpaid balance or the breach by Company of any term of this Order for Professional Services, the Company shall pay to BPMA, in addition to any damages provided by law, reasonable attorneys’ fees and costs of collection. The Company agrees to indemnify and hold BPMA harmless from and against any and all causes of action, claims, damages, charges, complaints, liabilities, obligations, costs, losses, debts, and expenses suffered by it which directly or indirectly result from, relate to, arise out of, or are attributable to: (a) any inaccuracy in any representation or breach of any warranty contained herein by the Company; or (b) any failure by Company to perform or observe, or to have performed or observed, in full, any covenant, agreement or condition to be performed or observed by it under this Order for Professional Services.

16)       Notices:  Except as expressly provided otherwise in this Order for Professional Services, any notice or other communication required to be given pursuant to this Agreement shall be in writing and shall be either: (a) delivered personally to the party notified; (b) sent by United States mail, first class registered or certified mail, postage prepaid; or (c) delivered by an overnight delivery courier service of national reputation. Any notice to BPMA shall be addressed to P.O. Box 4367, Chesterfield, MO  63006 and any notice to the Company shall be addressed to the address listed in the applicable Statement of Work, or as most recently provided by notice in accordance with this Notices Section. Any such notice shall be deemed to have been given as of the earlier of: (a) the date of actual receipt of such notice; (b) the third business day following the date on which the mail containing such notice is posted if sent by United States mail; or (c) the first business day after such notice is delivered to an overnight delivery courier service for delivery to the party to be notified.

17)       Assignment:  Any assignment of this Order for Professional Services or any rights or obligations thereunder by the Company without the prior written consent of BPMA shall be void.