These Professional Services Terms & Conditions (these “Terms”) govern any engagement letter incorporating these Terms by reference (“Engagement Letter”) entered into between Vitruvio, Inc. (“Vitruvio”) and the customer identified in the Engagement Letter (“Customer”) as of the Effective Date (as defined in the Engagement Letter). Vitruvio and Customer are sometimes referred to individually as a “Party” and collectively as the “Parties”. The Engagement Letter, together with these Terms and the proposal describing the professional services to be performed (“Proposal”), constitute the “Agreement.” Capitalized terms not defined in these Terms have the meaning given to them in the Engagement Letter.
By executing an Engagement Letter: (1) Customer agrees to be bound by the terms of the Agreement; and (2) the individual signing the Engagement Letter represents and warrants that it has the authority to enter into the Agreement on behalf of Customer.
In consideration of the mutual covenants stated below, the Parties agree as follows:
Subject to the terms and conditions of this Agreement, including payment of all applicable Fees, Vitruvio will use commercially reasonable efforts to perform agreed-upon professional services for Customer (the “Services”). Customer acknowledges that the successful completion of the Services depends on Customer reasonably and in good faith cooperating with Vitruvio by (i) providing complete, accurate, and timely data and information regarding the Services; and (ii) allocating sufficient resources, timely responding to inquiries, and timely performing any tasks reasonably necessary to enable the performance of the Services. Vitruvio shall not be responsible for any delays in its performance under this Agreement that result directly or indirectly from the unreasonable delay of either the Customer or a third-party service provider of the Customer.
In consideration of the Services to be performed under this Agreement, Customer will pay Vitruvio the fees set forth in the Engagement Letter (the “Fees”). Customer will pay all Fees and reimburse Vitruvio for all out-of-pocket expenses by check or wire transfer due upon the receipt of an invoice. All amounts unpaid after 30 days are subject to interest at two percent (2%) per month (twenty-four percent (24%) per annum) or, if lower, the maximum interest rate permitted by applicable law. If Customer disputes any amount in an invoice, it must notify Vitruvio within 30 days of the date of invoice; otherwise, such amounts will be deemed undisputed and payable. If Customer disputes any amount in an invoice, the Parties will work together in good faith to resolve such dispute.
Customer will (a) pay all taxes, duties, import and export fees, and any other charges or assessments, except the withholding of income taxes that are applicable to the performance of this Agreement and payable by Customer; and (b) reimburse Vitruvio for any encumbrance, fine, penalty, or other expense that Vitruvio may incur as a result of Customer’s failure to pay any such taxes, duties, fees, charges, or assessments. If any applicable law requires Customer to withhold an amount from any payment to Vitruvio hereunder, Customer shall effect such withholding, remit such amount to the appropriate taxing authority, and supply Vitruvio with a receipt of such payment within 30 days of its receipt by Customer.
Vitruvio (or its licensors) retains ownership of all concepts, know-how, tools, questionnaires and assessments, templates, layouts, methods, modules, frameworks, software, algorithms, databases, content, models, and industry perspectives developed or enhanced outside of or in connection with the Services (the “Vitruvio Tools”), it being understood that none of the Vitruvio Tools will contain Customer’s Confidential Information.
As between Vitruvio and Customer, Customer retains all right, title, and ownership in and to all content or information provided, uploaded, or transmitted to Vitruvio (the “Customer Materials”). Customer agrees that Vitruvio may use (i) Customer Materials as necessary to perform its obligations hereunder, including in connection with the use of artificial intelligence tools, such as large language models and similar technologies, to assist in the performance of the Services, provided that Vitruvio will make commercially reasonable efforts to ensure that any such tools are used in a manner consistent with Vitruvio’s confidentiality obligations under this Agreement; and (ii) aggregated, de-identified and/or anonymized Customer Materials to improve, operate, analyze and support Vitruvio’s products and services, including to develop industry benchmarks and market insights. Customer represents and warrants that it has all necessary right to provide and grant the rights granted hereunder with respect to Customer Materials.
Customer may give feedback to Vitruvio regarding the Services, including information about suggested modifications or user-desired solutions or workflows (collectively, “Feedback”). Vitruvio may use and incorporate such Feedback to improve its Services without restriction or payment to Customer. To protect Customer’s confidentiality, Vitruvio will not identify Customer as the source of any such Feedback, and Vitruvio acknowledges that all Feedback is provided on an “as is” basis and that Customer is not responsible for Vitruvio’s use of any Feedback, including any results from such Feedback.
Each Party agrees to exercise no less than reasonable care to maintain the confidentiality of information disclosed by the other Party hereunder that should reasonably be expected to be treated in a confidential manner based on the circumstances of its disclosure or the nature of the information itself, including without limitation Customer Materials (“Confidential Information”) and (i) not to disclose such Confidential Information to any third party without the prior written consent of the disclosing Party; and (ii) to only use such information in connection with exercising its rights or performing its obligations hereunder.
Confidential Information shall not include information that (i) is or becomes generally available to the public other than as the result of a disclosure by the receiving Party and/or its Representatives; (ii) was already known to receiving Party prior to being provided by the disclosing Party, unless such information came into receiving Party’s possession as a result of preliminary discussions with disclosing Party; (iii) was disclosed to the receiving Party without obligation of confidentiality from a source other than the disclosing Party, provided that such source itself is not bound by a confidentiality agreement with disclosing Party; or (iv) is developed by the receiving Party without the benefit or use of Confidential Information.
In the event either Party is required by any subpoena or other legal requirement to disclose any Confidential Information of the other Party, then to the extent legally permissible, notice shall be made as soon as possible by overnight courier or electronic mail to the other Party. Such other Party expressly reserves the right to interpose all objections it may have to disclosure of its Confidential Information. In the event that Party’s Confidential Information must be disclosed by the other Party pursuant to a subpoena or other legal requirement, the other Party will provide only that portion of the Confidential Information that is legally required and will exercise its best efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information. Each Party shall ensure that its personnel engaged in the performance of this Agreement comply with the confidentiality obligations of this Agreement.
Each Party shall return or securely delete or destroy all of the other Party’s Confidential Information on the earlier of (i) the termination or expiration of this Agreement; (ii) the conclusion of the Services hereunder; or (iii) the written request of such other Party.
Each Party represents and warrants that the person signing this Agreement on its behalf has all necessary power and authority to do so, and that upon such signature this Agreement is a binding obligation upon it that is enforceable in accordance with its terms.
Vitruvio represents and warrants that the Services will be performed in a professional and workmanlike manner consistent with industry standards.
Customer represents and warrants that it has all consents, licenses, approvals, and permissions needed to provide Vitruvio with Customer Materials and for Vitruvio to exercise its rights hereunder.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VITRUVIO PERFORMS THE SERVICES “AS IS” AND MAKES NO WARRANTY, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AS TO ANY MATTER WHATSOEVER, INCLUDING WITH RESPECT TO THE ACCURACY, COMPLETENESS, USEFULNESS, OR EFFECTIVENESS OF ANY SERVICES PERFORMED, DELIVERABLES PROVIDED, OR RESULTS OR INFORMATION GENERATED HEREUNDER OR ANY DECISIONS OR ACTIONS TAKEN BY CUSTOMER AS A RESULT OF ANY OF THE FOREGOING, AND VITRUVIO EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
VITRUVIO DOES NOT PROVIDE FORENSIC AUDITING. ACCORDINGLY, VITRUVIO’S ENGAGEMENT FOR SERVICES WILL NOT, AND CANNOT, BE RELIED UPON TO DISCLOSE FINANCIAL ERRORS, IRREGULARITIES, OR ILLEGAL ACTS SUCH AS FRAUD OR MISAPPROPRIATION THAT MAY EXIST OR TAKE PLACE DURING THE TERM OF OUR ENGAGEMENT. INCOMPLETE OR INACCURATE INFORMATION PROVIDED TO VITRUVIO WILL AFFECT THE ABILITY OF VITRUVIO TO PERFORM THE SERVICES.
Customer shall defend Vitruvio and its officers, directors, agents and affiliates (“Vitruvio Indemnitees”) from and against all third-party claims, actions, or suits and shall indemnify and hold the Vitruvio Indemnitees harmless against related costs, liabilities and expenses (including attorneys’ fees), arising out of this Agreement, any breach thereof, Customer Materials, or the Services, except to the extent caused by Vitruvio’s gross negligence or willful misconduct.
IN NO EVENT WILL VITRUVIO OR ITS AFFILIATES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM LIABILITY OF VITRUVIO OR ITS AFFILIATES ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID TO VITRUVIO UNDER THIS AGREEMENT IN THE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS OF LIABILITY ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
This Agreement shall commence on the Effective Date and shall remain in full force and effect for the period set forth in the Engagement Letter, or, if no period is set forth therein, then for a period of one (1) year (the “Initial Term”). The Agreement will automatically renew thereafter for successive periods of the same length as the Initial Term, unless either Party notifies the other of its intent not to renew at least thirty (30) days prior to the end of the then-current term (each, a “Renewal Term”).
Either Party may terminate this Agreement immediately upon written notice if the other Party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days of receipt of written notice specifying such breach.
Either Party may terminate this engagement for convenience upon thirty (30) days’ prior written notice to the other Party. Upon termination, the Customer will remain responsible for payment of all fees and expenses incurred through the effective date of termination.
Upon the termination or expiration of this Agreement: (i) Customer shall remit any Fees owed to Vitruvio for Services performed up to the date of termination hereunder; (ii) Vitruvio shall have no further obligation to perform any Services; (iii) Vitruvio shall make good-faith efforts to return all Customer Materials to Customer or to Customer’s designated recipient (e.g., new bookkeeper or accountant); and (iv) the following sections will survive: Sections 2 (Fees, Expenses, and Payment), 3 (Intellectual Property), 4 (Confidential Information), 5 (Representations; Disclaimer of Warranties), 6 (Indemnification), 7 (Limitation of Liability), 8.3 (Effect of Termination), and 9 (General Terms).
Neither Party will assign or otherwise transfer its rights and/or obligations under this Agreement, in whole or in part, to a third party unless such assignment is approved in writing by the other Party; provided, however, that either Party may assign this Agreement to any entity that acquires all or substantially all of its business or assets by merger, acquisition, sale, or reorganization; provided that the assignee agrees to be bound by all terms and conditions of this Agreement.
Except for obligations to pay any Fees, nonperformance of either Party will be excused to the extent, and for so long as that performance is rendered impossible by strike, fire, flood, acts of God, governmental acts, orders or restrictions, acts of terrorism, war, pandemic or epidemic, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party and not due to its fault or negligence.
Any notice under this Agreement must be given in writing to the other Party at the email or physical address set forth on the Engagement Letter. Notices will be deemed to have been given upon: (a) receipt (or when delivery is refused) if delivered in person or sent by recognized courier service; or (b) delivery (unless an error message or failure-to-deliver notification is received) if delivered by email.
In all matters relating to this Agreement, the Parties shall act as independent contractors. Neither Party will represent that it has any authority to assume or create any obligation, expressed or implied, on behalf of or act as agent, employee, or represent in any other capacity, the other Party.
During the term of this Agreement and for a period of twelve (12) months following its termination or expiration, Customer shall not, directly or indirectly, solicit, recruit, or hire, or attempt to solicit, recruit, or hire, any employee, contractor, or other personnel of Vitruvio who performed or were involved in the performance of Services hereunder, without the prior written consent of Vitruvio. In the event of a breach of this Section, Customer shall pay Vitruvio, as liquidated damages and not as a penalty, an amount equal to seventy-five percent (75%) of the annual compensation paid or payable by Vitruvio to such individual at the time of such solicitation or hiring.
This Agreement shall be governed by the laws of the State of New York, without regard to choice of law rules, and each Party submits and consents to the exclusive jurisdiction and venue of the state and federal courts located in New York, New York.
If any provision of this Agreement is declared void, illegal, or unenforceable, the remainder of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law, and the unenforceable provision shall be enforced to the fullest extent possible to achieve its intended purposes. A waiver of any provision of this Agreement must be in writing and executed by the Party granting the waiver, and a Party’s waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default; provided that no failure of either Party to exercise any right hereunder or to insist upon strict compliance of the obligations hereunder and no custom or practice of the Parties shall constitute a waiver of either Party’s right to demand exact compliance with the terms of this Agreement.
The Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersedes all prior agreements, arrangements, and undertakings between the Parties. Only a written amendment signed by both Parties can modify an Engagement Letter; however, given that these Terms apply across all Vitruvio customers, these Terms may be amended by Vitruvio upon written notice to Customer, provided that any such amendment will not be effective until the commencement of the next Renewal Term.
If software or services are being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), the software, services, and related documentation are “commercial items” as defined at 48 C.F.R. 2.101.
People-first accounting,
for Insurance Agencies.
Services
Commission reconciliation
Trust accounting
Monthly close
Carrier statements
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