Terms and
Conditions

TERMS & CONDITIONS

STATEMENTS OF WORK. The Parties agree that all individual Statements of Work (“SOW”) are subject to the Terms and Conditions set forth below.

 Each SOW will state all details required for the proper provision of project-level services, including scope, pricing, period of performance, and other required information (“Services”). Unless otherwise stated in a SOW, all Services shall be performed remotely. Each SOW will require signature by both parties to be effective.

CONTRACT DOCUMENTS AND ORDER OF PRECEDENCE. The contract documents consist of these Terms & Conditions, and all SOWs subsequently executed by the Parties as well as any other documents made a part of any SOW (“Contract Documents”).

In the event of a conflict among these Terms & Conditions and any SOW, unless that SOW expressly states the intention for the SOW to control with regard to the conflicting term or condition, then these Terms & Conditions shall control. Any terms or conditions contained in documents issued by Client other than the Contract Documents, including purchase orders, shall be voidable at MGT’s discretion.

TERM. The term shall be as described in each individual SOW.

TERMINATION. Any individual SOW may be terminated with cause by either party: (a) if the other party materially breaches the terms of a SOW and fails to cure the breach within thirty (30) calendar days following written notice specifying the breach, or (b) immediately upon written notice if the other party fails to comply with applicable law or regulation.

5. INSURANCE. During the Term any SOW, MGT will maintain the minimum insurance coverages below. MGT shall provide Certificates of Insurance to Client upon request and as required under SOWs.

a. Commercial General Liability	$1,000,000 per occurrence $2,000,000 annual aggregate
b. Business Automobile Liability	$1,000,000 combined single-limit, non-owned and hired. (MGT does not own autos)
c. Umbrella/Excess Liability	$10,000,000 per occurrence & aggregate, follows form
d. Worker’s Compensation	Per Statute
e. Employer’s Liability	$1,000,000 each accident
f. Professional Liability	$6,000,000 aggregate

 

INDEMNIFICATION. To the extent permitted by law, each Party shall fully defend, indemnify and hold harmless the other Party and its officers, directors, employees, agents, representatives, successors and assigns (collectively, “Indemnified Parties”) from any and all claims, demands, causes of actions, costs, expenses, liability, losses, or damages including attorney’s fees and expenses (“Claims”), whether in law or in equity, for bodily injury, death or property damage arising out of, relating to or caused by, in whole or part, the negligence, errors, omissions or willful misconduct of the indemnifying party or its officials, officers, employees, subcontractors, consultants or agents, relating to or connected with performance under any SOW, unless Claims are caused wholly by the sole negligence or willful misconduct of the Indemnified Parties.

 A Party’s indemnity obligations under this Section are contingent upon the indemnified party: a) promptly notifying indemnifying party  of each claim; provided, however, that the indemnified Parties failure to give prompt notice to the indemnifying party of any such claim shall not relieve the indemnified party of any obligation under this Section except and to the extent that such failure materially prejudices the indemnifying party’s ability to defend against such claim; b) providing the indemnifying party with sole control over the defense and/or settlement thereof, provided however, that indemnifying party shall not settle any claim that includes an admission of wrongdoing by indemnified parties or otherwise adversely affects indemnified parties’ interests without prior consent; and c) at the indemnifying party’s request and expense, providing full information and reasonable assistance to the indemnifying party with respect to such claim.

LIMITATION OF LIABILITY. MGT shall not be held liable for factors outside of its reasonable control, including losses or damages as a result of Client’s provision of inaccurate data, or changing laws, regulations, political conditions.

TO THE EXTENT PERMITTED BY LAW AND EXCEPT AS EXPRESSLY PROVIDED IN ANY SOW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA OR DATA USE, OR LOSS OR INTERRUPTION OF BUSINESS, ARISING OUT OF ANY OF THESE TERMS OR CONDITIONS RELATING TO ANY SOW OR WITH RESPECT TO ITS PERFORMANCE HEREUNDER, WHETHER ARISING OUT OF BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR ANY OTHER THEORY. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES APPLIES EVEN IF A PARTY HAD OR SHOULD HAVE HAD KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES.

To the extent permitted by law, except for actions or claims resulting from MGT’s gross negligence or intentional or willful misconduct, MGT’s total aggregate liability to Client shall be limited to the amount of compensation paid by Client to MGT in the twelve (12) months prior under the specific SOW  giving rise to liability.

GOVERNING LAW, JURISDICTION AND CONSENT TO SUIT. Every SOW shall be governed by and construed and interpreted in accordance with the laws of the state of Florida, irrespective of the choice of laws principles of the state of Florida, as to all matters including validity, construction, effect, enforceability, performance, and remedies. Client submits itself and its property in any legal action or proceeding relating to any SOW to the exclusive jurisdiction of any state or federal court within Hillsborough County, Florida and Client hereby accepts venue in each such court.

DISPUTE RESOLUTION PROCEDURE. In the event of a dispute, controversy or claim by and between the Parties arising out of matters related to any SOW, the Parties will first attempt in good faith to resolve through negotiation any such dispute, controversy, or claim. Either party may initiate negotiations by providing written notice to the other party setting forth the subject of the dispute and the relief requested. The recipient of such notice will respond in writing within five (5) business days with a statement of its position on, and recommended solution to, the dispute. If the dispute is not resolved by this exchange of correspondence, then senior management representatives of each party with full settlement authority will meet at a mutually agreeable time and place within fifteen (15) business days of the date of the initial notice to exchange relevant information and perspectives and to attempt to resolve the dispute.

If the dispute is not resolved by negotiation, either party may commence mediation by written request to the other party. The Parties will cooperate in selecting a mediator and in scheduling the mediation proceedings. The mediation shall take place in Tampa, Florida. The Parties will participate in the mediation in good faith and will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by either of the parties, their agents, employees, experts or attorneys, or by the mediator, are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the parties; provided, however, that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.

Either party may seek equitable relief prior to the mediation to preserve the status quo pending the completion of that process. Except for such an action to obtain equitable relief, neither party shall commence a civil action with respect to the matters submitted to mediation until after the completion of the initial mediation session, at which time suit may be brought in any court of competent jurisdiction. The prevailing party shall be entitled to an award of all reasonable costs, expenses, and attorneys’ fees. In addition, should the dispute under any SOW involve the failure to pay fees, and the matter is not resolved through negotiation or mediation, Client shall pay all costs of collection, including, but not limited to, MGT’s legal fees and costs should MGT prevail.

CONFIDENTIALITY. Each party shall maintain in confidence and protect from unauthorized disclosure all information exchanged between the Parties that is reasonably understood under the circumstances to be confidential, whether disclosed orally, in writing or marked as confidential (“Confidential Information”).  Confidential Information includes but is not limited to all information or material which (i) is not publicly available; (ii) gives the owner of the information some competitive business advantage or opportunity of obtaining such advantage, disclosure of which could be detrimental to the interests of that party; and (iii) is marked “Confidential,” “Restricted,” or “Proprietary Information” or other similar marking or known by the parties to be considered confidential and proprietary.

Each party’s Proprietary or Confidential Information shall remain the sole and exclusive property of that party and unless made in writing, no licenses are granted to the other party related to such information.  Notwithstanding the foregoing, MGT shall maintain and have access to all data for normative and internal business purposes.  Additionally, MGT reserves the right to invite all study participants to volunteer their e-mail address in order to participate in future studies or focus groups.  At any time, either party may ask the other party for a list of all party employees that will have access to the other party’s Proprietary or Confidential Information.  The parties agree to disclose and instruct any of their own employees that may have access to the other party’s Proprietary or Confidential Information and/or trade secrets of these confidentiality and nondisclosure obligations.  In addition, each party commits that any of its own employees that have access to the other party’s Proprietary or Confidential Information shall have signed and be committed to a separate agreement related to confidentiality and nondisclosure of such information.

The receiving party shall make all reasonable efforts to protect Confidential Information from disclosure to unauthorized third parties. Confidential Information may only be disclosed to third parties with a need-to-know under the circumstances and who are bound by confidentiality obligations no less restrictive than those herein. Neither party shall use such Confidential Information except in performance of the Services. MGT may, however, disclose Client’s name and the general nature of MGT’s work for Client sales proposals.

The above obligations of confidentiality shall not apply to the extent that the receiving party can show that the relevant information (a) was at the time of receipt already in the receiving party’s possession; (b) is, or becomes in the future, public knowledge through no fault or omission of the receiving party; (c) was received from a third-party having the right to disclose; or (d) is required to be disclosed by law.

DATA/WORK PRODUCT OWNERSHIP.  Ownership of Work Product. MGT hereby assigns, conveys, grants, and transfers to Client all right, title, and interest in only the final report(s) that MGT explicitly designates as a final report when delivering it to Client pursuant to any SOW (the “Final Report”), including all copyrights, renewals and extensions thereof.

To ensure the responsible conduct of research, to maximize the integrity and accuracy of data collection, and to comply with ethical research standard practices, all original research materials, methodologies, processes, and other underlying work product (collectively, “Work Product”) remains the sole property of MGT as a private entity and is not to be released through open information laws or requests.  Work Product that remains the sole property of MGT includes, but is not limited to: design and methodology documents, contact lists, questionnaires and interview guides, responses to questionnaires, data files (including all quantitative/survey response and data files, qualitative research transcripts and aggregations, video and audio files), data analysis files, superseded draft reports, data that in any way identifies a participant and/or their individual responses, and any other information not explicitly designated by MGT as a final report. Work Product is confidential and the sole property of MGT; it is never allowed to be released through open information laws or requests.

Unless otherwise specified in writing, Client represents and warrants that only the Final Report is subject to open information laws and may be disclosed by Client in response to a lawful request under such laws. Client further hereby waives and relinquishes any interest in any Work Product.  If the Final Report includes any confidential information that in any way identifies research participants or other original research material (e.g. names of people who participated in research, video or audio clips from research interviews, direct quotes associated with individual names, and so forth) that information is to be completely redacted prior to its release.

Should Client be required to disclose or identify information in response to a valid order of a court of competent jurisdiction or a valid statutory request for information, Client shall give MGT or its counsel reasonable notice of what documents it intends to disclose prior to any such disclosure.

By maintaining these confidentiality standards, MGT upholds the trust and welfare of research participants, the credibility and integrity of research standards, and complies with ethical, legal, and funding stipulations for effective research and data collection.

FORCE MAJEURE. Neither party shall be liable or considered at fault for any delay (except for payment) resulting from circumstances beyond the party’s reasonable control, including but not limited to fire, flood, earthquake, elements of nature, epidemics, global pandemics, quarantines, acts of God, acts of war, labor disputes, and supply chain disruptions (“Excusable Delays”). The delayed party shall notify the other party in writing upon the discovery of any significant Excusable Delay. During an Excusable Delay, the delayed party shall use reasonable efforts to mitigate costs and damages and to resume performance under any SOW.

The Parties recognize that MGT’s ability to timely perform under a SOW is contingent upon Client’s timely provision of any agreed-upon data, personnel access, or other requirements. If Client’s failure to provide to such data, access or other requirements causes significant delays to MGT’s progression of Services, and MGT incurs losses or damages as a result, then the Parties shall negotiate and execute a SOW amendment for an equitable adjustment to the schedule and for additional costs. MGT shall provide all substantiating documentation of costs reasonably requested by Client in consideration for any equitable adjustment. Excusable Delays shall not give rise to an equitable adjustment.

FEES AND PAYMENT. Unless otherwise set forth in a SOW, all correct invoices submitted by MGT to Client shall be due and payable upon receipt. If Client disputes an invoice or portion thereof in good faith, then Client shall pay any undisputed portion and provide MGT with written notice of the dispute, in reasonable detail, and the Parties shall promptly meet to resolve such dispute. MGT reserves the right to impose an interest charge equal to the lesser of one and one-half percent (1.5%) per month or the maximum allowable by law in respect of any invoice which is outstanding for more than thirty (30) days. MGT may stop work after sixty (60) days of Client’s non-payment of undisputed invoiced amounts.

MODIFICATION. An SOW shall only be modified by written amendment signed by the Parties. All signed amendments shall be deemed incorporated into the SOW by reference and subject the Terms & Conditions as stated herein.

NON-SOLICITATION. During the term of every SOW and for a period of two (2) years following termination or expiration, neither party shall knowingly, directly or indirectly, solicit nor encourage the solicitation of any person who is, or was within a 12-month period prior to such solicitation, an employee of the other party or its affiliates that became known to the other party as a result of any SOW, except with the prior written consent of the other party. This provision shall not restrict the right of either party to solicit by public advertisement.  Further, in recognition of the substantial investment made by MGT in identifying, recruiting, hiring, and training its employees, and the savings Client would realize for same, Client agrees to pay MGT liquidated damages, and not as a penalty, the amount of fifty (50%) percent of the annual compensation (including salary, bonuses and incentives) for each such employee hired.  The parties acknowledge the difficulty is accurately ascertaining the actual amount of damages here and agree that this amount reflects a reasonable estimate of damages.  This provision is not intended to violate any laws or restrict employee mobility in the market, but instead to further the purposes and intent of this Contract, recognize the significant investment of MGT and to protect legitimate business interests.

ASSIGNMENT. Neither party may assign any rights nor delegate any duties or obligations under any SOW without the express written consent of the other party. Notwithstanding the foregoing, MGT, or its permitted successive assignees or transferees, may assign or transfer any SOW or delegate any rights or obligations hereunder without consent: (i) to any entity controlled by, or under common control with, MGT, or its permitted successive assignees or transferees; or (ii) in connection with a merger, reorganization, transfer, sale of assets or change of control or ownership of MGT, or its permitted successive assignees or transferees.

INDEPENDENT CONTRACTOR. It is expressly understood that at all times, while rendering the Services, MGT is acting as an independent contractor and not as an officer, agent, or employee of the Client. MGT shall not be required to keep specific work hours (except in the case of specific hours required under employee leasing contracts), equipment, or a specific office, and shall use independent means and methods for performing the Services. For all purposes, including Medicare, Social Security taxes, the Federal Unemployment Act (“FUTA”), income tax withholding, worker’s compensation, and unemployment insurance, MGT, its personnel and contractors will be treated and deemed independent contractors and not employees of Client.

NON-DISCRIMINATION/EQUAL EMPLOYMENT PRACTICES. Neither party shall unlawfully discriminate or permit discrimination against any person or group of persons in any matter prohibited by federal, state, or local laws. During the performance of every SOW, neither party or their employees, agents, or subcontractors, if any, shall discriminate against any employee or applicant for employment because of age, marital status, religion, gender, sexual orientation, gender identity, race, creed, color, national or ethnic origin, medical conditions, physical disability, or any other classifications protected by local, state, or federal laws or regulations. The parties further agree to be bound by applicable state and federal rules governing equal employment opportunity and non-discrimination.

NOTICES. All legal notices required by these Terms & Conditions related to any SOW are deemed to have been given when notices are both (1) delivered by email to the email address below, and (2) following such email delivery, a mailed copy of the notice is delivered to the mailing address below.

To MGT:	To Client:
Name: Cicero, a division of MGT Impact Solutions, LLC	At the physical and email address provided in the SOW.
ATTN: Legal Notice/Contracts
Address: 4320 West Kennedy Blvd. Tampa, FL 33609
Email: contracts@MGT.us

 

SEVERABILITY. If any provision of a SOW or these Terms & Conditions shall be declared illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining provisions hereof, but such illegal or invalid provision shall be fully severable, and the SOW in conjunction with these Terms & Conditions shall be interpreted and enforced as if such illegal or invalid provision had never been included herein.

COUNTERPARTS AND EXECUTION. Any SOW may be executed in counterparts, each of which when so executed shall be deemed an original and all of which together shall constitute one and the same instrument. The counterparts may be executed by electronic signature and delivered by scanned signature or other electronic means by any of the parties to any other party and the receiving party may rely on the receipt of the SOW so executed and delivered as if the original had been received.

SURVIVAL. The sections Term, Termination, Insurance, Indemnification, Limitation of Liability, Governing Law, Jurisdiction, Consent to Suit, Dispute Resolution Procedure, Confidentiality, and Non-Solicitation, of these Terms & Conditions as well as the payment obligations described in any SOW shall survive the termination or expiration of the SOW.

ENTIRE AGREEMENT. These Terms & Conditions, all SOWs and any amendments or exhibits constitute the entire and only agreement between the Parties. Each party acknowledges that in entering into an SOW, it has not relied on any representation or undertaking, whether oral or in writing, except for those expressly stated herein. Any purchase order provided by the Client will be limited by, and subject to, the terms and conditions of the relevant SOW and these Terms & Conditions.

NON-EXCLUSIVITY. Both Parties remain free to enter into similar agreements with third parties. During the term of any SOW, MGT may perform Services for any other clients, persons, or companies as MGT sees fit, so long as the performance of such Services does not interfere with MGT’s performance of obligations under any SOW, and do not create a conflict of interest.

THIRD PARTY BENEFICIARIES. Except as specifically set forth herein, nothing in any SOW is intended or shall be construed to confer upon any person or entity, other than the parties hereto and their successors or assigns, any rights or remedies under or by reason of an SOW.

AUTHORITY. The parties each represent and acknowledge that they have the authority to enter into any SOW on behalf of the party.  Each party represents that they are entering any SOW voluntarily and after having the opportunity to review or obtain advice from counsel if they so choose.